Untitled Texas Attorney General Opinion ( 1958 )

. .
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 pre-
pared 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, where-
in 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 re-
posed in him. His duties are fixed by law,
are mandatory and ministerial.”
State v. Robison was decided in 1930, and ap-
parently 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 on
the proper interpretation of certain portions of Article 5t 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 ac-
ceptance of a bid or the rejection of a bid
and the approval of the minutes will constl-
tute 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 re-
flecting 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 sub-
ject 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 Legis-
lature, 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 general-
ly 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 busi-
ness usage in awarding contracts to the high bidder In one
action and one action only, it would seem that before a con-
struction 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 har-
monized, 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 Sec-
tion 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". His-
torically 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 Dlc-
tlonary, 2nd Edition:
"5a. a memorandum or draft, as of in-
structions to an ambassador; a note to pre-
serve 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 ju-
dicial 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 ju-
dicial act is afforded.
"The failure of the minute entry to
correctly or fully recite what the court ju-
dicially 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 in-
quiry 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 , 143 S.W.2d 119 (Tex.Civ.
App. 1940, error dism. jt. corr. 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 judg-
ment should not be confused with the
judgment Itself. The judgment Is a judl-
clal 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 judg-
ment is not essential as between the parties
themselves. A judgment therefore is con-
sidered 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 minis-
terial.
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