How many votes does a Texas hospital district board need to pass something, and do abstentions count against it?

TX AG Opinion GA-0412: How does a hospital district board count votes and abstentions?

Plain-English summary

The Harris County Attorney asked two related questions about how the Board of Managers of the Harris County Hospital District approves its actions. First, does the board pass a measure by a majority of a quorum present and voting, or by a majority of all members present? Second, should the board count abstentions, whether from a conflict of interest or a refusal to participate, when it figures the final vote?

The opinion started by noting that neither chapter 281 of the Health and Safety Code (which creates these hospital districts) nor any other statute sets quorum or voting requirements for the board. But the board had adopted its own bylaws, and those bylaws make Robert's Rules of Order govern its meetings on anything not inconsistent with the bylaws or Texas law. The bylaws also set a quorum at a majority of the board, which matches the Government Code's general definition of a quorum as a majority of the members fixed by statute.

Because the board chose Robert's Rules, the opinion looked to how those rules define a "majority vote": more than half of the votes actually cast by people entitled to vote, excluding blanks and abstentions, at a meeting where a quorum is present. That tracks the common-law rule the Texas Supreme Court has long applied, that a quorum can act and a majority of the quorum binds the body. So the board approves an action by a majority of the members present and voting, and abstentions are not counted.

The opinion applied this to the actual July 28, 2005 vote on a contract. A quorum was present, and the count was three in favor, two against, one abstention, three absent. The measure passed, because three is more than half of the five votes cast, and the abstention simply dropped out. The opinion flagged one limit: this rule would not control if a statute or constitutional provision required a majority of all members elected to the body (it gave the legislature's two-thirds rule as an example), but it found no such requirement for this board.

Currency note

This opinion was issued in 2006. 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 analysis here turned on the Harris County Hospital District board's own bylaws as they stood in 2006, plus the version of Robert's Rules of Order then in effect. Bylaws can be amended and newer editions of Robert's Rules have been published. Any board facing a vote-counting question today should check its current bylaws and the current statutes rather than rely on this opinion.

Who this opinion affected (as of 2006)

Hospital district boards of managers: The opinion told them that if their bylaws adopt Robert's Rules of Order, they approve actions by a majority of members present and voting at a meeting with a quorum, and do not count abstentions.

Board members weighing whether to abstain: It clarified that under Robert's Rules an abstention is neither a yes nor a no; it simply is not counted, so it does not block a measure the way a "no" vote would.

Parties dealing with the district (such as contractors): It confirmed how to tell whether a board action, like a contract award, actually carried, by counting only the votes cast and setting abstentions aside.

Common questions

Does a board measure pass on a majority of those voting or a majority of all members?
According to the opinion, because this board adopted Robert's Rules, a measure passes on a majority of the members present and voting at a meeting where a quorum is present, not a majority of all members.

Does an abstention count as a "no" vote?
No. The opinion concluded abstentions are not counted at all in determining the outcome under Robert's Rules. An abstention is treated as not voting, rather than as opposition.

Did the three-to-two vote with one abstention pass?
Yes. The opinion explained that with a quorum present, three votes for the measure were a majority of the five votes cast, so it passed; the abstention and absent members did not change that.

When would this rule not apply?
The opinion noted the rule gives way when a statute or constitutional provision requires a majority of all members elected to the body. It found no such requirement applicable to the Harris County Hospital District board.

Background and statutory framework

The Harris County Hospital District Board of Managers consists of members appointed by the Harris County Commissioners Court (Tex. Health & Safety Code Ann. § 281.021(c) (Vernon Supp. 2005)). Neither chapter 281 nor any other statute sets quorum or voting requirements for hospital district boards (id. ch. 281), so the board adopted bylaws that set a quorum at a majority of the board, made Robert's Rules of Order govern its proceedings on matters not inconsistent with the bylaws or Texas law, and allowed a bylaw to be suspended by a majority vote of the members present. The bylaw quorum tracks the Government Code's rule that "[a] quorum of a public body is a majority of the number of members fixed by statute" (Tex. Gov't Code Ann. § 311.013(b) (Vernon 2005)), and a governmental body may adopt Robert's Rules so long as they are consistent with the Open Meetings Act and other applicable law (Tex. Att'y Gen. Op. No. DM-228 (1993)).

Robert's Rules of Order defines "majority vote" as more than half of the votes cast by persons legally entitled to vote, excluding blanks or abstentions, at a meeting where a quorum is present. The opinion found this consistent with the common-law rule that a quorum can act and a majority of the quorum binds the body (Webster v. Texas & Pacific Motor Transport Co., 166 S.W.2d 75 (Tex. 1942); State v. Etheridge, 32 S.W.2d 828 (Tex. Comm'n App. 1930); Tex. State Bd. of Dental Exam'rs v. Silagi, 766 S.W.2d 280 (Tex. App.-El Paso 1989, writ denied)). It noted that an older common-law rule treating an abstention as acquiescence in the majority has been "distinguished, rejected, or ignored about as often as it has been followed," and the Texas Supreme Court has never applied it (Meador-Brady Mgmt. Corp. v. Tex. Motor Vehicle Comm'n, 866 S.W.2d 593 (Tex. 1993)). The opinion cautioned that the rule does not apply where a statute or constitutional provision requires a majority of all members elected to a body, citing the legislature's two-thirds requirement (Tex. Const. art. III, § 39; Caples v. Cole, 102 S.W.2d 173 (Tex. 1937)), but found no such requirement for this board.

Citations

Statutes:

• Tex. Health & Safety Code Ann. § 281.021(c) (Vernon Supp. 2005); ch. 281
• Tex. Gov't Code Ann. § 311.013(b) (Vernon 2005)
• Tex. Const. art. III, § 39

Cases:

• Webster v. Texas & Pacific Motor Transport Co., 166 S.W.2d 75 (Tex. 1942)
• State v. Etheridge, 32 S.W.2d 828 (Tex. Comm'n App. 1930)
• Tex. State Bd. of Dental Exam'rs v. Silagi, 766 S.W.2d 280 (Tex. App.-El Paso 1989, writ denied)
• Meador-Brady Mgmt. Corp. v. Tex. Motor Vehicle Comm'n, 866 S.W.2d 593 (Tex. 1993)
• Caples v. Cole, 102 S.W.2d 173 (Tex. 1937)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/greg-abbott/ga-0412
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/2006/ga0412.pdf

Original opinion text

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

ATTORNEY GENERAL OF TEXAS
GREG ABBOTT

March 13, 2006

The Honorable Mike Stafford
Harris County Attorney
1019 Congress, 15th Floor
Houston, Texas 77002

Opinion No. GA-0412

Re: Voting procedures for Board of Managers of Harris County Hospital District (RQ-0395-GA)

Dear Mr. Stafford:

You ask the following questions about the approval of actions by the Board of Managers of the Harris County Hospital District:

1. Whether the board of managers of a hospital district created pursuant to Chapter 281 of the Health [and] Safety Code must approve an action based on a vote of (1) a majority of a quorum present and voting or (2) a majority of all of the members present?

2. Should the governing body consider abstentions, whether due to a conflict of interest or a refusal to participate, of its members in its determination of the final vote?[1]

You ask in general about hospital districts created pursuant to Health and Safety Code chapter 281, but the information you provide pertains exclusively to the Harris County Hospital District. We will limit our answer accordingly.

The Harris County Hospital District Board of Managers (the "Board") consists of nine members[2] appointed by the Harris County Commissioners Court. See TEX. HEALTH & SAFETY CODE ANN. § 281.021(c) (Vernon Supp. 2005) (the "Harris County Commissioners Court shall appoint a board composed of not less than seven or more than nine members"). Neither chapter 281 nor any other statute establishes quorum requirements or voting requirements for hospital district boards. However, the Board has adopted bylaws governing its meetings, including the following provisions:

Article VIII
Meetings

Quorum
The presence of the majority of the Board of Managers shall constitute a quorum for the transaction of business.
...
Article IX
Procedures for Meetings
...

3. Rules of Order
   a. Robert's Rules of Order[3] shall govern the proceedings of the meetings of the Board of Managers in all matters not inconsistent with these Bylaws or the Constitution and laws of the State of Texas. Notwithstanding anything contained in such Rules to the contrary, the Chairman of the Board of Managers may vote on any matter before the Board
   ...
   Article XVII
   Amendments and Alterations
   (6) Suspension of Bylaws
   The suspension of a Bylaw, not in conflict with applicable laws, shall require a majority vote of the Board of Managers present at an official meeting.

Stafford Brief, supra note 2, at 1-2.

The quorum requirement established by article VIII is consistent with Government Code section 311.013(b), which provides that "[a] quorum of a public body is a majority of the number of members fixed by statute." TEX. GOV'T CODE ANN. § 311.013(b) (Vernon 2005). A governmental body such as the Board may adopt provisions of Robert's Rules of Order to govern its meetings, as long as the adopted provisions are consistent with the Texas Open Meetings Act and other laws applicable to the governing body. See Tex. Att'y Gen. Op. No. DM-228 (1993) at 3.

Your questions relate to a vote taken at a Board meeting on July 28, 2005, when the Board considered awarding a contract and voted on the measure. Stafford Brief, supra note 2, at 1. Seven Board members were present when the meeting began, but only six members were present when the vote was taken. Id. The vote to award the contract, subject to drafting and executing a final agreement, was as follows:

For: three Board members
Against: two Board members
Abstention: one Board member
Absent: three Board members

See id. Thus, a quorum was present when the vote was taken, and the vote was three to two in favor of awarding the contract, one Board member abstaining. You wish to know whether this measure passed and in particular what effect, if any, the abstention had.

We address your questions together. We look to Robert's Rules of Order, which the Board has adopted to govern its meetings. See Stafford Brief, supra note 2, at 2 (quoting Board bylaws Article IX(3)). Robert's Rules of Order states that the term "majority vote" means "more than half of the votes cast by persons legally entitled to vote, excluding blanks or abstentions, at a regular or properly called meeting at which a quorum is present." H. ROBERT'S RULES OF ORDER, NEWLY REVISED (10th ed.), p. 387, l. 9-13. This rule is consistent with the common-law rule as stated by the Texas Supreme Court in Webster v. Texas & Pacific Motor Transport Co., 166 S.W.2d 75 (Tex. 1942):

[T]he ordinary rule in the absence of special restrictions being that a quorum can act and a majority of the quorum bind the body. . . . Thus, were the body composed of twelve members, a quorum of seven could act, and a majority of that quorum, four, could bind the body. An unscrupulous minority of four by withholding notice to five, might thus bind both the body and the corporation.

Webster, 166 S.W.2d at 77. See State v. Etheridge, 32 S.W.2d 828, 830 (Tex. Comm'n App. 1930) (favorable vote by majority present and voting is generally sufficient to adopt a measure); Tex. State Bd. of Dental Exam'rs v. Silagi, 766 S.W.2d 280, 284 (Tex. App.-El Paso 1989, writ denied) (license was revoked when seven members of a twelve-member board participated in the hearing, all seven participating members found the allegations to be true, and four of the seven voted to revoke license).

Because the Board has adopted Robert's Rules of Order, it should not consider abstentions in determining the final vote.[4] See H. ROBERT'S RULES OF ORDER, NEWLY REVISED (10th ed.), p. 387, l. 11-12. Thus, the Board must approve an action by a majority vote of the members present and voting at a meeting where a quorum is present. Abstentions are not counted in determining the vote.

The rule stated in Robert's Rules of Order will not apply to a vote if a statute or constitutional provision requires a majority vote of all persons elected to a governmental body. Article III, section 39 of the Texas Constitution, for example, provides that a law adopted by the legislature shall not take effect "until ninety days after the adjournment of the session . . . , unless the Legislature shall, by a vote of two thirds of all the members elected to each House, otherwise direct." TEX. CONST. art. III, § 39; see Caples v. Cole, 102 S.W.2d 173, 175 (Tex. 1937). See also Etheridge, 32 S.W.2d at 829-30 (statute required a two-thirds vote of entire city council). We find no such statute applicable to the Board.

SUMMARY

The Board of Managers of the Harris County Hospital District has adopted Robert's Rules of Order to govern its meetings. Pursuant to Robert's Rules of Order, the Board must approve an action by a majority vote of the members present and voting at a meeting where a quorum is present. Abstentions are not counted in determining the outcome of the vote.

Very truly yours,

GREG ABBOTT
Attorney General of Texas

BARRY R. MCBEE
First Assistant Attorney General

ELLEN L. WITT
Deputy Attorney General for Legal Counsel

NANCY S. FULLER
Chair, Opinion Committee

Susan L. Garrison
Assistant Attorney General, Opinion Committee

Footnotes

1. Letter from Honorable Mike Stafford, Harris County Attorney, to Honorable Greg Abbott, Attorney General of Texas (Sept. 13, 2005) (on file with the Opinion Committee, also available at http://www.oag.state.tx.us) [hereinafter Request Letter].

2. Memorandum Brief from Honorable Mike Stafford, Harris County Attorney, to Honorable Greg Abbott, Attorney General of Texas (Sept. 13, 2005) at 1 (attached to Request Letter) [hereinafter Stafford Brief].

3. Robert's Rules of Order codifies present-day parliamentary law. See H. ROBERT'S RULES OF ORDER, NEWLY REVISED (10th ed.), p. XXV.

4. We note that "an ancient common law rule . . . deems a member of a body who abstains from a vote to acquiesce in the action favored by a majority of the members voting" but this "rule has been distinguished, rejected, or ignored about as often as it has been followed." Meador-Brady Mgmt. Corp. v. Tex. Motor Vehicle Comm'n, 866 S.W.2d 593, 596-97 (Tex. 1993) (citing cases from other states). The Texas Supreme Court has never applied it. See id.