Can three members of a nine-member Texas state board pass or block a resolution, or does it take a majority of the whole board?

Plain-English summary

The Commissioner of Agriculture asked the Attorney General to interpret one sentence in the statute that governs how the Texas Agricultural Finance Authority (TAFA) makes decisions. Section 58.014(b) of the Agriculture Code said that "the affirmative vote of at least three directors is necessary to adopt a resolution." When that language was written, the TAFA board had six members. In 1993 the Legislature enlarged the board to nine but never changed the "three directors" sentence. The Commissioner worried that, read literally, the sentence could let as few as three members (a third of the full board) control board action, even against a majority.

The Attorney General concluded the statute did not let a three-member minority overrule a majority. The sentence said "at least three," and a board majority is itself "at least three," so the opinion read the provision to require, for any resolution, the approval of a majority of the directors voting (a number that will always be at least three). On that reading, three members voting against a majority could not veto the majority's decision, and three members voting for a resolution that a majority opposed could not adopt it.

The opinion did identify one situation the unamended language still allowed. If only a bare quorum showed up, five of the nine members, then three of those five make up a majority of the quorum, so three directors could pass a resolution even though they are only a third of the full board. The Attorney General called that result anomalous but not absurd, so it was not something the office could rewrite. If the 1993 enlargement left the "three directors" figure out of step, correcting that oversight was a job for the Legislature, not the Attorney General, citing the long-settled rule that courts do not correct legislative omissions.

Currency note

This opinion was issued in 2000. Subsequent statutory amendments, court decisions, or later Attorney General 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.

What the opinion meant for those who asked

The Commissioner of Agriculture (what the opinion held for her): The opinion answered her concern that a minority could control the board: it held the statute did not allow that. It also confirmed her separate observation that, on a bare quorum, three directors could still carry a resolution, and it framed any fix to that anomaly as a legislative matter.

The TAFA board (what the opinion held for it): At the time of this opinion, the board could adopt a resolution only by a majority of the directors actually voting; three members could neither veto a majority nor push through a resolution a majority opposed. The one exception the opinion recognized was the bare-quorum case, where three of five present could prevail.

Common questions

Could three members of the TAFA board overrule the other six?
No. The opinion read the "at least three directors" language to require a majority of the directors voting, so a three-member minority could not override a majority.

Then how could just three directors ever pass something?
Only when attendance was at a bare quorum. A majority of the nine-member board (five) is a quorum, and three of those five are a majority of the quorum, so three could carry a resolution in that narrow situation.

Why didn't the Attorney General just read the statute to say "five"?
The opinion explained that fixing a possible legislative oversight is the Legislature's job, not the Attorney General's, citing Gilmore v. Waples for the rule that courts do not correct omissions in legislation.

Background and statutory framework

Section 58.014(b) of the Agriculture Code provided that "A majority of the voting membership of the board constitutes a quorum. The board shall act by adopting resolutions. The affirmative vote of at least three directors is necessary to adopt a resolution." When that provision was adopted the board had six members. The Legislature increased the membership to nine in 1993 (Act of May 24, 1993, 73d Leg., R.S., ch. 538, § 1, 1993 Tex. Gen. Laws 2020, amending section 58.012) without amending the "three directors" sentence in section 58.014(b).

The opinion sorted the Commissioner's concern into three situations: three members approving while a majority votes the other way and claiming their vote controls; three members voting against a majority and claiming a veto; and three members who are themselves a majority of those present voting on a measure. It rejected the first two because the statute's "at least three" language is satisfied by a board majority, so the provision is best read to require approval by a majority of the directors voting. The third, where three constitute a majority of a five-member quorum, the opinion accepted as a real but merely anomalous consequence of the unamended text. Correcting any oversight in the figure was left to the Legislature (Gilmore v. Waples, 188 S.W. 1037, 1039 (Tex. 1916)).

Citations

Constitutional and statutory provisions:

• Tex. Agric. Code Ann. § 58.014(b) (Vernon Supp. 2000)
• Act of May 24, 1993, 73d Leg., R.S., ch. 538, § 1, 1993 Tex. Gen. Laws 2020 (amending section 58.012)

Cases:

• Gilmore v. Waples, 188 S.W. 1037 (Tex. 1916)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/john-cornyn/jc-0267
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/2000/jc0267.pdf

Original opinion text

Best-effort transcription from the official scanned PDF. Minor character-level errors from the source OCR have been corrected; the linked PDF is authoritative.

August 10, 2000

The Honorable Susan Combs
Commissioner
Texas Department of Agriculture
1700 North Congress Avenue
Room 933
Austin, Texas 78701

Opinion No. JC-0267

Re: Construction of section 58.014(b), Agriculture Code, which relates to the voting procedures of the board of the Texas Agricultural Finance Authority (RQ-0188-JC)

Dear Commissioner Combs:

You have asked this office to construe section 58.014(b) of the Agriculture Code, which concerns the decision-making procedures of the Texas Agricultural Finance Authority (the "TAFA"). The statutory language permits such decisions by the "affirmative vote of at least three" members of a nine-member board. TEX. AGRIC. CODE ANN. § 58.014(b) (Vernon Supp. 2000). We do not read this language to permit a minority of board members to countermand a majority. Such a result is not required by the plain language of the statute and would, as you suggest, be absurd. On the other hand, given the unamended language of section 58.014(b) of the Agriculture Code, it is possible for an affirmative vote of three members of the TAFA to pass a resolution when those three members constitute a majority of a quorum of the board. This result, while anomalous, is not absurd. While the statutory language at issue may have been a matter of legislative oversight, the correction of such oversight, if any, is a matter for the legislature.

Section 58.014(b) provides, "A majority of the voting membership of the board constitutes a quorum. The board shall act by adopting resolutions. The affirmative vote of at least three directors is necessary to adopt a resolution." Id. (emphasis added). As you point out, when this provision was adopted, the board consisted of six members. In 1993, however, the legislature increased the board membership to nine. See Act of May 24, 1993, 73d Leg., R.S., ch. 538, § 1, 1993 Tex. Gen. Laws 2020 (amending section 58.012). It did not, however, amend the language of section 58.014(b). Accordingly, as you note, "it is possible for a resolution to be adopted or enacted and Board action taken by approval of only one-third of the TAFA Board, clearly not a quorum (or majority) of the entire Board." Letter from Honorable Susan Combs, Commissioner, Texas Department of Agriculture, to Honorable John Cornyn, Texas Attorney General, at 1 (Feb. 17, 2000) (on file with Opinion Committee).

As we conceive it, the possible ways in which your concern could eventuate may be divided into three logical categories. In the first, three members of the board approve a resolution while a majority vote otherwise, and the three assert that pursuant to the last sentence of section 58.014(b) their action constitutes approval. In the second, three members of the board vote contrary to a majority vote of approval and assert that their action constitutes a veto. In the third, three members constituting a majority of the voting members present vote in favor of or against a resolution. These constitute the possible logical permutations. (For the sake of convenience, we will not consider all of the possible numerical permutations.)

While we agree with your suggestion that the results in which a minority overrules a majority are absurd, we do not believe it is necessary to invoke the absurd result rule to gainsay these possible interpretations because the statutory language does not necessitate them. The sentence in question does not say that three members may adopt a resolution; it says that "at least three" may. TEX. AGRIC. CODE ANN. § 58.014(b) (Vernon Supp. 2000). In either of these situations, the board majority itself, as well as the three member minority, constitutes "at least three directors." Accordingly, we construe section 58.014(b) as requiring for the adoption of a resolution the approval of a majority of the board members voting on it, which majority will consist of "at least three directors."

The third possibility, in which three members of the board constitute a voting majority of those present, can occur only when a bare quorum of the board - five members - votes. Pursuant to the first sentence of section 58.014(b), "A majority of the voting membership of the board constitutes a quorum." Id. In this situation a decision could be made by a majority of the quorum who nevertheless constituted only a third of the full board. Such a situation, while anomalous, is not absurd.

This anomalous result may well not have been intended by the legislature, as you suggest. There is no legislative history to the contrary of which we are aware. Even presuming that the legislature simply overlooked the necessity of amending the final sentence of section 58.014(b) by changing the word "three" to "five," however, courts have long held that the correction of such omissions and oversights is a matter for the legislature. See Gilmore v. Waples, 188 S.W. 1037, 1039 (Tex. 1916) (It is not the function of the judiciary to "correct what they may deem excesses or omissions in legislation."). This office cannot usurp that role.

Accordingly, we conclude that the language of section 58.014(b) of the Agriculture Code does not permit a minority of the board of the TAFA to overrule the decision of a majority. That language does, however, permit an affirmative vote of three members of the board to pass a resolution when those three members constitute a voting majority of a quorum of the board. While this result may have been the result of legislative oversight, the correction of such oversight, if any, is a matter for the legislature.

SUMMARY

Given the unamended language of section 58.014(b) of the Agriculture Code, it is possible for an affirmative vote of three members of the Texas Agricultural Finance Authority to pass a resolution when those three members constitute a majority of a quorum of the board. While the statutory language at issue may have been a matter of legislative oversight, the correction of such oversight, if any, is a matter for the legislature.

Very truly yours,

JOHN CORNYN
Attorney General of Texas

ANDY TAYLOR
First Assistant Attorney General

CLARK KENT ERVIN
Deputy Attorney General - General Counsel

ELIZABETH ROBINSON
Chair, Opinion Committee

James E. Tourtelott
Assistant Attorney General - Opinion Committee