Do nonvoting ex officio members count toward a state board's quorum?

Plain-English summary

The Texas Board of Licensure for Nursing Home Administrators had a board made up of nine appointed members plus three ex officio, nonvoting members (the Commissioner of Human Services, the Commissioner of Health, and the Executive Director of the Texas Department on Aging, or their designees). The board's acting executive director asked two practical counting questions. First, when you check whether enough people are present to do business (a quorum), do the three nonvoting members count? Second, when the board needs a "two-thirds majority" to adopt or change a rule, two-thirds of what number, and does it depend on how many people show up?

On the quorum question, the Attorney General concluded that the ex officio, nonvoting members are not counted. A quorum exists so that a body has enough qualified voters present that the majority's votes can bind the whole body. Members who cannot vote cannot transact business, so it makes no sense to count them toward the number needed to act. The act says "a majority of the board shall constitute a quorum," and the Attorney General read "the board," for quorum purposes, to mean the appointed, voting members. With nine voting members, a quorum is five.

On the two-thirds question, the Attorney General concluded that the board counts only the members qualified to vote, whether or not all of them are present, and takes two-thirds of that number. The statute requires a "two-thirds majority," not two-thirds plus one. So if all nine voting members are qualified to vote, it takes at least six votes to adopt, change, or repeal a rule. If fewer than nine are qualified to vote, the board multiplies the number of qualified voters by two-thirds. The number of members who actually attend a given meeting does not change the two-thirds figure, as long as a quorum is present.

Currency note

This opinion was issued in 1992. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here. The Nursing Home Administrators Licensure Act (former V.T.C.S. article 4442d), the Open Meetings Act (then V.T.C.S. article 6252-17), and APTRA (then V.T.C.S. article 6252-13a) have all since been recodified and amended, so confirm the current statutes and the board's current composition before relying on anything described here.

Background and statutory framework

Section 3(l) of the Nursing Home Administrators Licensure Act, V.T.C.S. article 4442d, established the Texas Board of Licensure for Nursing Home Administrators and provided that the board "shall consist of nine (9) members." One member had to be a licensed physician; one had to be an educator, a psychiatrist, or a psychologist; four had to be licensed nursing home administrators; and the remaining three had to be representatives of the general public. In addition to those nine, the statute provided for three ex officio, nonvoting members: the Commissioner of Human Services, the Commissioner of Health, and the Executive Director of the Texas Department on Aging, or their designees. Section 8(a) authorized the board to promulgate, alter, or abolish rules upon approval by a two-thirds majority of the board.

The Attorney General first clarified what "ex officio" means. An ex officio board member is a person who becomes a member of a board by virtue of an elected or appointed office that person holds, with no further appointment necessary. 32A C.J.S. Ex officio at 851 (1964). "Ex officio" refers only to the means by which a person becomes a member; by itself it does not make an ex officio member inferior to an appointed member. Under this particular act, however, the ex officio members cannot vote.

On the quorum question, the Attorney General concluded the legislature did not intend the ex officio members to be counted. Section 4(3) of the act provided that "at any meeting a majority of the board shall constitute a quorum," but neither the act nor the Open Meetings Act (to which the board was subject) said whether ex officio members are included in determining a quorum. The Attorney General therefore turned to the common law, to which governmental bodies are also subject. See Attorney General Opinion DM-95 (1992) at 1-2. Under the common law, the concept of a quorum rests on the idea that "when the required number of persons go into a session as a body, the votes of the majority thereof are sufficient for binding action," so "quorum" signifies the number of members legally qualified to transact business by voting. See Ramirez v. Zapata County Independent School District, 273 S.W.2d 903, 905 (Tex. Civ. App.—San Antonio 1954); Bedford County Hospital v. County of Bedford, 304 S.W.2d 697, 704 (Tenn. Ct. App. 1957). Because ex officio members unqualified to vote are unqualified to transact business on behalf of the body, the Attorney General concluded the ex officio, nonvoting members should not be counted in determining a quorum, consistent with Government Code section 312.004 and decisions from other states. See League General Insurance Co. v. Michigan Catastrophic Claims Ass'n, 458 N.W.2d 632, 636 (Mich. 1990); In re Shelton College, 263 A.2d 810, 811 (N.J. Super. Ct. App. Div. 1970). The opinion supported its reading by noting that the per diem provision in the rest of section 4(3) (paying "board members" $25.00 while engaged in board business) does not reach ex officio members, whose participation is a function of the office they hold.

On the two-thirds question, the Attorney General concluded that in determining the number of votes needed for a two-thirds majority, the board counts only the members qualified to vote, whether or not all qualified members are present. See City of Alamo Heights v. Gerety, 264 S.W.2d 778, 780 (Tex. Civ. App.—San Antonio 1954, writ ref'd n.r.e.). On its face, section 8(a) required only a "two-thirds majority," not two-thirds plus one. So if all nine voting members are qualified to vote, the board must act by at least six votes; if fewer than nine are qualified, the board multiplies the number of qualified voters by two-thirds. The number of members actually present is irrelevant to the two-thirds calculation, provided a quorum is present.

Common questions

Do nonvoting members of a board count toward a quorum?
Under this opinion, no. The Attorney General read the quorum as a majority of the members qualified to vote. Because the board's ex officio members could not vote, they were not counted, so a quorum of the nine-member voting board was five.

What does a "two-thirds majority" mean for adopting a rule?
The board takes two-thirds of the number of members qualified to vote. With nine qualified voters, that is six votes. The statute required a two-thirds majority, not two-thirds plus one, so six votes were enough.

Does the required number of votes change if some members are absent?
No. The opinion concluded the two-thirds figure is based on the number of members qualified to vote, not the number who attend a particular meeting, as long as a quorum is present.

Why are ex officio members on the board at all if they cannot vote?
They sit by virtue of the office they hold (here, certain state commissioners and an agency director, or their designees). The opinion explained that "ex officio" describes how a person joins a board, not a lesser rank, but under this act those members were nonvoting, so they did not count toward quorum or the two-thirds vote.

Citations

• V.T.C.S. art. 4442d, §§ 3(l), 3(11), 4(3), 4(5), 8(a), 9(4) (Nursing Home Administrators Licensure Act)
• Open Meetings Act, V.T.C.S. art. 6252-17, §§ 1, 2
• APTRA, V.T.C.S. art. 6252-13a
• Government Code § 312.004
• Attorney General Opinion DM-95 (1992)
• Ramirez v. Zapata County Independent School District, 273 S.W.2d 903 (Tex. Civ. App.—San Antonio 1954)
• Bedford County Hospital v. County of Bedford, 304 S.W.2d 697 (Tenn. Ct. App. 1957)
• League General Insurance Co. v. Michigan Catastrophic Claims Ass'n, 458 N.W.2d 632 (Mich. 1990)
• In re Shelton College, 263 A.2d 810 (N.J. Super. Ct. App. Div. 1970)
• Petition of Kinscherff, 556 P.2d 355 (N.M. Ct. App. 1976)
• City of Alamo Heights v. Gerety, 264 S.W.2d 778 (Tex. Civ. App.—San Antonio 1954)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/dan-morales/dm-0160
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1992/dm0160.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain. The linked PDF is authoritative.

Office of the Attorney General
State of Texas

DAN MORALES
ATTORNEY GENERAL

August 27, 1992

Mr. Gerard Swain
Acting Executive Director
Texas Board of Licensure for Nursing Home Administrators
4800 North Lamar, Suite 310
Austin, Texas 78756-3177

Opinion No. DM-160

Re: Whether, under article 4442d, V.T.C.S., the presence of ex officio members of the Texas Board of Licensure for Nursing Home Administrators is considered in determining whether a quorum of the board is present, and related questions (RQ-310)

Dear Mr. Swain:

You have asked our opinion about sections 3(l) and 8(a) of the Nursing Home Administrators Licensure Act (the "act"), V.T.C.S. article 4442d. Section 3(l) of the act establishes the Texas Board of Licensure for Nursing Home Administrators (the "board") and states that the board "shall consist of nine (9) members." One of the nine members must be a licensed physician; one member must be an educator, a psychiatrist, or a psychologist; four members must be licensed nursing home administrators; and the remaining three members must be representatives of the general public. V.T.C.S. art. 4442d, § 3(l). In addition to these nine members, the statute provides for three ex officio, nonvoting members: the Commissioner of Human Services, or his or her designee; the Commissioner of Health, or his or her designee; and the Executive Director of the Texas Department on Aging, or his or her designee. Section 8(a) authorizes the board to promulgate, alter, or abolish rules and regulations upon approval by a two-thirds majority of the board.

Your questions are as follows:

      1. What constitutes a quorum of the Board? Do the ex officio members count toward the quorum?

      2. What constitutes a "two-thirds majority of the Board"? For example, if all nine voting members are present at a meeting, would the required number of votes to adopt a rule be six (6) or seven (7)? If one (1) voting member were absent from a meeting, would the "two-thirds majority of the Board" be based upon the number in attendance (eight [8]) or the number of appointed, approved, and sitting members (nine [9])?

Before answering your first question, we would like to clarify the status of an ex officio board member. An ex officio board member is a person who has become a member of a board by virtue of an elected or appointed office that person holds; no further appointment is necessary. 32A C.J.S. Ex officio at 851 (1964). Ex officio thus refers only to the means by which a person becomes a member of a board. By itself, ex officio membership status does not make an ex officio member inferior to an appointed member.[1] Under this particular act, however, ex officio members of the board cannot vote.

With reference to this act, we believe that the legislature did not intend that the ex officio members be counted for purposes of determining whether a quorum is present. The first sentence of section 4(3) of the act provides that "at any meeting a majority of the board shall constitute a quorum." Neither the act nor the Open Meetings Act, to which the board is subject (V.T.C.S. art. 4442d, § 3(11)), states whether ex officio members are included in determining the presence of a quorum. See V.T.C.S. art. 6252-17, §§ 1(a), (b), (d); 2. We turn, therefore, to the common law, to which governmental bodies also are subject. Attorney General Opinion DM-95 (1992) at 1-2.

Under the common law, the purpose underlying the concept of a "quorum" is that "when the required number of persons go into a session as a body, the votes of the majority thereof are sufficient for binding action." 74 C.J.S. [title illegible in scan] at 171 (1951). Thus, "quorum" signifies that number of the members of a body that is legally qualified to transact business by voting. Ramirez v. Zapata County Independent School District, 273 S.W.2d 903, 905 (Tex. Civ. App.—San Antonio 1954); Bedford County Hospital v. County of Bedford, 304 S.W.2d 697, 704 (Tenn. Ct. App. 1957) ("quorum" ordinarily means majority of all members entitled to vote); 74 C.J.S., supra. Ex officio members who are unqualified to vote are unqualified to transact business on behalf of the governmental body. In our opinion, therefore, the ex officio, nonvoting members on the board should not be counted in determining whether a quorum is present. See Gov't Code § 312.004; see also League General Insurance Co. v. Michigan Catastrophic Claims Ass'n, 458 N.W.2d 632, 636 (Mich. 1990) (not counting ex officio, nonvoting member in determining presence of quorum); In re Shelton College, 263 A.2d 810, 811 (N.J. Super. Ct. App. Div. 1970) (same). But see Petition of Kinscherff, 556 P.2d 355, 357 (N.M. Ct. App. 1976), cert. denied sub nom., Sandoval County Valuation Protests Bd. v. Kinscherff, 558 P.2d 620 (N.M. 1976).

Accordingly, we believe that this portion of section 4(3) should be interpreted as requiring a majority of the appointed, voting members of the board, and not the persons holding ex officio, nonvoting positions, in determining whether a quorum is present. This construction is consistent with the only practical construction of the remainder of section 4(3), which specifies that "[b]oard members shall receive a per diem of $25.00 while engaged in board business together with actual and necessary expenses." Because his or her participation in board business is considered a function of the particular office the ex officio member holds, an ex officio member does not receive a per diem. Thus, "board members" as used in the remaining sentence of section 4(3) of the act does not include persons holding ex officio positions.[4]

Your second question pertains to section 8(a) of the act, which authorizes the board to promulgate, alter, or abolish rules and regulations upon "approval by a two-thirds majority of the [b]oard." In determining the number of votes necessary to constitute a two-thirds majority, the board counts only those members who are qualified to vote, whether or not all qualified members are present at the meeting. See City of Alamo Heights v. Gerety, 264 S.W.2d 778, 780 (Tex. Civ. App.—San Antonio 1954, writ ref'd n.r.e.); 63 A.L.R.3d 1072, 1081-82 (1975). On its face, section 8(a) requires only a "two-thirds majority"; the section does not require two-thirds plus one. Accordingly, if all nine voting members of the board are qualified to vote, the board must promulgate, alter, or abolish a rule or regulation by at least six votes. If fewer than nine voting members are qualified to vote, the board multiplies the number of qualified voting members by two-thirds to determine the number of votes necessary to promulgate, alter, or adopt a rule or regulation.[6]

                             SUMMARY

      Under section 3(l) of the Nursing Home Administrators Licensure Act, V.T.C.S. article 4442d, for purposes of determining the number of members of the Texas Board of Licensure for Nursing Home Administrators sufficient to constitute a quorum, the board must base its calculation only on the total number of appointed, voting board members. Ex officio, nonvoting members are not counted for purposes of determining the presence of a quorum. Under section 8(a) of the same act, which requires the board to promulgate, alter, or abolish a rule by a two-thirds majority vote, the board calculates the number of votes needed for a majority by multiplying by two-thirds the number of members qualified to vote (provided that a sufficient number of members are present at the meeting to constitute a quorum). For purposes of determining the number of votes necessary to constitute a two-thirds majority, the number of members present at the meeting is irrelevant.

                                            DAN MORALES
                                            Attorney General of Texas

WILL PRYOR
First Assistant Attorney General

MARY KELLER
Deputy Assistant Attorney General

RENEA HICKS
Special Assistant Attorney General

MADELEINE B. JOHNSON
Chair, Opinion Committee

Prepared by Kymberly K. Oltrogge
Assistant Attorney General

[1] We note that the act provides that the board also is subject to the Administrative Procedure and Texas Register Act (APTRA), V.T.C.S. art. 6252-13a. V.T.C.S. art. 4442d, § 3(11). Nothing in APTRA affects your questions.

[3] Indeed, construing the statute to require that ex officio, nonvoting members be included in the number necessary for a quorum would be nonsensical. For instance, if the ex officio, nonvoting members were to be included in the quorum calculation, the number of members necessary for a quorum would be seven. If all three ex officio members attended a meeting along with four appointed, voting members, a quorum would be present, and the board could proceed to conduct business. Despite the presence of a quorum, however, the board could not finally promulgate, alter, or abolish any rules or regulations because the board could not generate a two-thirds majority vote on any issue. See infra p. 4 (explaining number of members necessary to constitute two-thirds majority).

[4] Likewise, section 9(4) of the act requires each "member of the board" to be present for at least one-half of the board's regularly scheduled meetings held each year. Failure to attend the requisite number of meetings results in the board member's automatic removal from the board. V.T.C.S. art. 4442d, § 4(5). As we discussed supra, an ex officio board member is a member solely by virtue of an elected or appointed office that person holds; in other words, an ex officio member's seat on the board attaches to the person's office. The officeholder cannot be removed from his or her ex officio position as a result of the officeholder's failure to attend a certain number of meetings. [Remainder of footnote illegible in scan.]