An act performed by an administrative agency is a ministerial act when no discretion is exercised by the agency[i]. In Commissioner of General Land Office v. Smith, 5 Tex. 471 (Tex. 1849), the court held that the distinction between a judicial and a ministerial act is whether the act involves or does not involve discretion. Where the duty of an officer is fixed and certain, the performance of such duty is ministerial[ii]. A ministerial act is performed in response to a duty imposed by law[iii]. Similarly, the ministerial act should be performed in the manner and on conditions specifically designated by law[iv].
The character of a duty as ministerial or discretionary is to be determined by the nature of the act to be performed and not by the office of the performer[v]. In State ex rel. School Dist. v. Ellis, 163 Neb. 86 (Neb. 1956), the court held that an official duty is ministerial when it is absolute, certain, and imperative.
The exercise of discretion in a ministerial act is not subject to review by the judicial branch of the government[vi]. The fact that a necessity may exist for the ascertainment of facts or conditions, upon the existence or fulfillment of which, the performance of the act becomes a clear and specific duty, does not operate to convert the act into a judicial act[vii]. Similarly, the fact that a necessity may exist for the ascertainment of the facts upon the existence of which the performance of an act becomes a clear and specific duty, does not convert a ministerial act into a discretionary one[viii].
Generally no liability is imposed on individual members of administrative agencies when they failed to perform or performed negligently, some duty owing the public. However when the members failed to perform some definite and specific ministerial act, they are held liable[ix].
[i] Texas State Bd. of Dental Examiners v. Fieldsmith, 242 S.W.2d 213 (Tex. Civ. App. 1951)
[ii] People ex rel. Chamberlin v. Trustees of Schools, 319 Ill. App. 370, 380 (Ill. App. Ct. 1943)
[iii] Larson v. Marsh, 144 Neb. 644 (Neb. 1944)
[v] State ex rel. School Dist. v. Ellis, 163 Neb. 86 (Neb. 1956)
[vi] O’Brien v. Carney, 6 F. Supp. 761 (D. Mass. 1934)
[vii] Larson v. Marsh, 144 Neb. 644 (Neb. 1944)
[viii] State ex rel. School Dist. v. Ellis, 163 Neb. 86 (Neb. 1956)
[ix] Bronaugh v. Murray, 294 Ky. 715, 719 (Ky. 1943)