ax      TEXAS

                              ~AUEI-S-IN.
                                       TEXAS



                            April    7, 1950

    Hon. Wm. L. Tayloti             opinion    Ho. V-1038.
    Prosecuting Attorney
    Rarrlson county                 Re: Autirlty   of the Comml~~lon-
    Harsball,Texas                      ers' Court to determine the
                                        matel'ial to be recorded In
                                        the minutes of its lPeetingl3
    Dear Sir:                           and related matters.
                   You have requested     an opinion   on the following
    ql.leet10nsr
                "(1) Cmi the Commissioners1 Court by a
          majority vote refuse to Include certain occur-
          renaes at a meeting when the occurrences   un-
d         questionably happenedwhlle   themeetingwas     in
          progress?
                '(2) Can the court, after holding special
          meetings without notifying    the County Clerk,
          or any of his deputies,    and vithout their
          bowledge,   compel the clerk, who nmt; attest
          the ndnu$es, to reoord said minutes?
                   The faats'aubn&tted  by you with reference          to
    your first      question are substantially  as follows:
                At a meeting of the CommIssionera   Court
          minutes of a prior meeting were presented to
          the Court for approval;   These minutes con-
          tained certain objectltis  of one of the Corn--
          mfseioners to an order passed by the Cpmmis-
          aLoners Court at such meeting.    The niajority
          of the Court voted to exclude these objec-
          t1cma.
               Se&Ion 18 of Article            V of the Constitution        of
    Texas provides In parts
                ,"Each county shall In like manner be dl-
          vlded into fourcoaanlasionerst     precincts   ln
4         each of whlah there shall be elected by the
          qualified   voters thereof one county com~@s-
          sloner,   who shall hold his office    for two
.   .




        Hon. Wm. L. Taylor,         page 2 (V-1038)


                years and until hls successor    aball be elect-
                ed and qualified.     The aounty comissloners
                so chosen, with the county judge, as presid-
                ing officer,    shall caupose the county doQIBis-
                sloners   court, which shall exercise   such pow-
                ers and jurlsdlctlon    over all county busi-
                Peas, a8 is conferred by this Conetitutlon
                and the laws of this State, or as may be here-
                after prescribed.”
                        Artiolea   2345 and 2349, V.C.S.,   provider
                *Art.    2345 . . .
                      ‘The county clerk shall be ex-officio
                olerk of the oommlseloners court; and he shall
                attend upon each tern of said comeissloners
                court; preserve and keep all books, papem,
                records and effects   belonging thereto,   issue
                all notices,  write and proaesa necessary for
                the proper execution OS the powers and duties
                0r the ocemlssionera court, and perform all
                au& other duties as may be prescplbed by law.’
                #Art.    2349 . . .
                      "The court shall require the county clerk
                to keep suitable book6 in whioh shall be re-
                corded the prooeedlnge of eaah term of the
                oourt; which record shall be read and signed
                after  eaoh term by the county judge, or the
                member presiding and.atteetetl by the olerk;
                The olerk shall also recdrd all authorl%ed
                prooeedlngs of the court between term;   and
                euoh record shall be read and signed on the
                Sirat day of the term next after such proceed-
                ings occurred..”
                   In construing the above quoted statutory   provl-
        aions  It was held In Attorney General’;8 Opinion no.
        04318,   dated banuary 5, 1945, thatt
                       “It Is uniformly held that the C&s-
                elonsral   Court Is a court of record.   oano v.
                Palo Pinto County, 8 S.W. 634; Bradford v.
                Yloseley, 223 S.W. 171. Artiole    2349 above
                quoted neoeasarllg   makes It SO. Any cou&
                whose proceedings   are required by law to be
Hon. Um. L. Taylor,    page 3 (V-1038)


     recorded,+  minutes or books kept for        that
     purpose $8 a court of record..
              'The word 'proceedings'    is used her&.
      .ln Its ordinary sense, and means the offlc‘ial
      functions    of the court;    Such functicms are
     not Umlted to any particular          olasa of func-
      tions,    but on the contrary they inalude every
      official    act done by the members of the court
     ip thecourse      of their sitting.       This would
     Include a pertinent      motion made by any member
      of the court In the course of pasalng a,reao-
      lutlon or order whatsoever.        Such motion is
     anintegral      part of the resolution      or order.
     Rwthemnore, a motion made by a member of the
      court duly in session is itself         a 'proceedd-.
     lng' in the regular and ordinary way, and, we
     think, should be entered upon the minutes,
     whether such motion receives a second or not.
     .In parl.l.amentary usage in suoh a case the mo-
     tlan la lostfor      want of a aeoond, and Is
     thus effectually     disposed of.
            “A good reason is easily asSIgned, ii
     reason for the statute were required,          why
     such prooeedings      should be made a matter of
     record. The CtnnmlaalonerslCourt Is a oourt
     of general    juriedictlon    fn this State, end
     as we have seen, Is a court of record.           It is
     a cou& of tremendoue~ Importance,         sinas it
     haa jurladlction      over the county affalre      of
     the county.     The public has a deep concern
     vith the official      acts of au& court, and Its
     proceeding8    therefore    are of such importance
     as that an aocurate record should be kept for
     the general Information        of the public concern-
     ed; Moreover, while it sometimes happens that
     the failure    to make a minute of certain pro-
     ceedings is not fatal to the validity          of the
     same (See Lands v., State, 131,S.W. (2) 321),,~
     and that the validity       of an order properly
     passed is susceptible       of proof,  and the order
     ma9 be.proved         oral teatlmany (Met= v.
     Ford, 252 S.W. 7 gl), nevertheless,        the stat-
     utory requirement for duly recorded minutes,
     attested   by the proper officers,      is the Saf-
     er way, and matters of suoh lmportanoe should
     not be left to the difficult        and saPetlmes
     uncertain method of proof dehors the record.
.   .




        Hon. U~I. L. Taylor,       page 4 (V-1038)


                      "It   does not follow      from what we have
                 said that   ZWasbnS given      by a mmm.l.ssloner in
             vot*..upon   a proposlt       lmltt d t th
             court should b e entereZn%e      ml&tei   --e
              hey are not within the reaulrements of the
             statute -- for they constitute   no mart of
             %he court pr,roaeedinRe. as do the motion. the
             vote and the order.”    (&tphasls supplied)
                    In view of the foregoing  it Is our opinion in
        answer to your first   question that the Coaunlssloaersl
        Court oaanot remove from the minutes of the meeting of
        the Ccenalasioners'  Court those occurrences whioh consti-
        tute a part of the 'court proceedIngsa such as motions
        presented to the oourt, votes of the members of the Com-
        mlssionars'   Court on the motions, and orders passed.
        The Comml.wloners* Court may however exolude from Its
        minutes an9 dztscusslon made by t$e members 3.n favor 0s
        or against an9 motion beiore the oourt~.
                   Your seco&l question involves  "some speaial
        meet-8   which the court held without notifying   the
        clerk, or an9 of hls deputies,  and without the knowledge           d
        0s the alerk or any 0s his deputies.*
                     The general     rulesgoverning   the Pecorda of the
        Oommiseloners~Court are well        stated in 11 Texi Jtu?. 570~,
        572, Counties,       Se&s. 41 and 42, as follows:
                     "The c~aslonere~         court la required to
             record    upon eultable books the prooeedlngs          of
               each term 0s oourt; and the minutes are re-
              qulred to be read over and signed by $he
               county judge or the member presiding and at-
              tested by the clerk.        All authority    exerclsed
              by the court must be evidenced In that manner.
             .It Is not aecessm         that a single book shall
               contain the record of the court's         proceedings;
               various books may be kept In which proceedings
              relating    to particular    matters ma9 be properly
              recorded.     Each  book   kept  and wed for this
              p\urpose is, within the meaningrof the law, a
              cut;;book,      and the entHe        therein made aPe
                        .
                      'Ca3taalaslaners~      aourts   are courts 0s re-
                 cord, and they must authentloate          all 0rriOiai
             acts, if such authentloatlon              Is required, by
             a seal presorlbed by statute.*                                 d
.   .




        Hon. Wm. L. Taylor,   page 5 P-1038)


                     “rhe requirement that every official     act
              of the ccmmlaaloaeral     court shall be etidenoed
              by au order entered upon the ainutes of the
              court has been modified to the extent that
              where an order is shown to have been actally
              made by the court, and has been sated upon,
              the omlsslon of the clerk to record the order
              till   aot,render  It or the acts done in pursu-
              am8 thereof void.      Although an order 0s the
              conmxlealonera’ court has nevar been entered
              upon the court’s    minntes, It may nevertheless
              be proved by par01 evidence and given effect.
              The rule ls.aecessar%ly     different  where,aa
             ,order is required by the terms 0s a special
              statute to be mtered of record, or where a
             ,general statute declare8 that such order shall
             ,be void unless recorded.       It is beid, that the
              evidenae to eetabllsh    a eontract mast be ooa-
              talnedIQ the written prooeedings of the
              court.     However, If the oouct Salle to place
              amorder npon the minutes at the fiime when
              it la made~as~requirea      by law, the order mm9
              be entered upon the minutes.at a aubsaquent
              mgu&ar or epeqlal session.
                  In Attoz6e9Qenera11s      opiniti   lo.   O-6483,   dat-
        ed Ma9 12, 1945, It is statedt
                    “It ha8 beea held that the pr0Vit310~~ Of
             the statutes hereinabove referred    to maklmg
             it the duty of the aounty clerk, e1ther.i.a per-
             809 or by aeputy,~to    record the proceedings
             of each term of the oontulssionersl    oourt are
             dlrectoz-9cml9 ana not mapdatorp, and that
             the’failare   of the oouuty olerk or his dep-
             uty to performsuch aervlcea will not luvali-
             date the ~orderaaad proceedlngdof the com-
             missioners * oourt insofar aa they afreat sub-




                   As pointed out above, “it was aot Intended that
        the etatutory provision6  requiring  the couuty clerk to
        attend upon aad reoord the proceedings   of each $erm of
        the Gammlsslonersg Court should be disregarded.      In the
.   .




        Hon. Uat; L. Taylor, page 6 (V-1038)


        lnataat ease,, however, the aortae alerk was not dlere-
        gardlng such statutory   provlel~ns for the elelrlr was not
        notlfled~of  the *s+eial   meeting,!! uuder the fasts aub-
        mlfted.
                     It la’t&iea ia 4 Uoras~ and Phrases       (Penn. J3d.j
        775, that the.term ‘attestation’,       implies ths   presenoe of
        some person who etanda by but ,la not a party         tag the
        transautloa.     The .term squattest” ie defined ti    ~--43iJA.
        691, Attert,    as Sollmmt,                            ;, i

                    "The .term cases fromthe .two Latin words
              *aa’ and %estarl* , which mean literally        to
             witness to or to bear vitnese;       and It has been
             said that the notion zieeoalated wlth ths word,
             both IQ ,lts teehalos      and nonteohmioal llaej is
            .~.t,of    observation    and eubs~rlptlon;   and that,
                         somat3mee aharacterlsed     as not;.hawlag
             a surf“f”olently    definitealgalfioatioa,     yet+it
             nafrrrauy    ttbs 00808 0s iwforoe       from ctttttext
             an&purposei      although ‘attest’   Inherently .beT
             t6keas~ q eoqsmn personal aat. 0s authentication
             USiuettuStt8nes8. In the nrese& tense. the :.:.                  J
             worii has been defined as-rnaanimz to a& &~%a.~


             declaration     in words or writing to suppqrt a
             fact,    or torsl@fy       by subscription    ofhi&
             -      thati the aler        ha8 wltPeesed ths exe-
             autlan of the .partlcular        lns~umant;    to affim
             to be &we or e&mine; .to bear ,titneee            to;, to
             certify.to      so g:saribe;   to tebtlfy:,to    vouch fort
             to titaebsi5 to ~witneee the execution 0s. a~.. .‘~’
             written Instrument, at the requastof.hlm who
             makes it, and 6ubsorlblng         the aaaps as a wlt?
             Qese;     It has been said that the word Is ap-.
             pmprlately      used for the arrimmti0.n 0s per-~.
             suns in their orr,iafal        oapaolty to teat the :




                                                                       l




                : In ~-3leWof the foregoing   It Is our oplnlm that
        10 Sti &bsslble.:for  the crounty alerk to attept~-.to ‘a pro-        d
    Hon. Wm. L. Taylor,      page 7 (V-1038)
,



    ceedlag of .the Ccqlasl~~ers~ Court which be did not
    attend, and the lav.doea not tyqqln  +lm to..peH?l?PL.itih
    an sot;                                        : ,.
              The next question for Ott determination  IS
    whether It le the duty of the county clerk to record ml.n-
    ate5 0s the CorPirsiopers*  Court which have not been at-
    tested;
                Thq cou&s of thle State In cons~        the pro-
    viaioas   ?f A+lcle,2349  +bove_qu?ted have +at&,$ui>~
    the county clerk 1~ required by the p~ovIslons,.ef   Artl-
    cle 2349 to attest to &nd record the mInutea oi:@ie Oom-
    mIssloners*   Court, but hIei failure to record such ad&%?
    utea will not Invalidate   the orders of the CoppnissIon-




                 The ocppt   held   In RankIn vi Boel,   ~3rtp#rt
        "
               We rule formerly prevailed      that &tt~~ ~'
         traeta or agreemeats made by mu?xLclpal cor-
         porations,    county or city, are only mid    and
         bbdhg      what entered upon the mlnutes.  9hzl.a




            be neoeaeaPy to prove the pitssage 0s the or-
            tyss        @ ~,;~~d2!$v"$'&;ffy&..    "2""
            mere da&cram by the'colrPdseioaera*and    a
            ve&ul a reement to do a oertalu         wltb
            out a vo& .belag tak-  wouldnot  -3
                                             cons itut?
            an omler and would Pat be valIdi  ~Therb,must'
Baa. wfa. L. Taylor,   page 8. (v-1038)


      be ‘itatorder,vaMa ?q the xiotm$seioners. Pay-
      ette  County oi’~lWmse, ‘herein cited; In
      ttpxmag 0s the 80airiOwon Or the rule as
      a.et out In Ewing v. Etmqau, the Court 0i Civ-
      il ~App~lrr’qa~at
            .“Vhatever  ua9 be the extent to which
      those decisions   moQlfy the rule as to the ne-
      cessity   fos the entry &II the mlautea of or-
      aera made by a commlaalonezel oourt, they III
      no way modlf9 the rule that all ooatraata
      made by a ciouuty, to be valld’and bludlng,
      +it    be made by or under authorltg   of an or-
      der of the coam$seloners*    court.!
           .;.In Watson v. Dewftt Corm*     supa, the court
allaired   admlssloa   la evlaenoe of an order 0s the comls-
 i+otters~~53ourt   which was retarded in its mlautes buti
,aot .att&ed     by the alerk, the coart stating that tti
,8@8tute (Art; 2349) “requlrtngthe olerk to attest the
~mlh~ea.Is4lrectory       oaly and th6g should not havo.been
 re@et+      beoause not so atteateqli.,
           IQ view of the foregoing It Id our apinioa that.
the County Clerk as ex-officio    clerk of the Ccm.leslon-
em1 Ooort has the duty uudsr the prowlsIons of A*lole
2349 to ‘reoortl Uie rLinute0 0s the Oomdssioaere g Court
regardletp  of whewez! maah minutes hear his atteetment;
                           SURMARY
            The Commlsslonera* Court IS anthorised        to
      exclude frm its ndnutea~debqt6a 3.n favor of
      or against motiona before the court; but majr
      not exclude oo~e~enpbes whleh~oonstltute        a
      part of the “dourt proaeedlags"        such as mo-
      tlasss made, votee fm thit motieaa, and ordera
                ‘pa;, Oottst     Art; vi, sec. 181 ,Arti;
      8$:;:&4g,     v;cis;;‘i;e;     opiaion ~0; o-6318,-
      th+d Jan~r9 5, 1945;
           The oounty alerk Is not reqalred to. at-
      tost mInutea 0s a meeting ef the Cemrisslan-
      en1 Cotirt of which he Wd no notiae or &now-
      ledge and did not attend, but It is hia dtij
      to record'saah   minute8 wader the ~rovlaioas
      of Arfiole   2349, V.C.S.  11 Tex. Jur. 5707
d    HGL IRE;L. Taylor,page 9 (V-109)




                                 Yours   very   truly,
                                    PRICE E%ulIEL
                                 Attorney  Qeneml
     APPR0Vif.B

     J; C. bavls,    Jr;
     ,cotmtyAffairs oivis~on
     Charles B.~I(athem
     :Ibreeutive As~lstaat
LJ   JRtbh