DAN MORALES 

ATTORSEY GENERAL 

Office of tfy (?lttornep 

%btate of Eexae 

August 27,1992 

&nerd 

Mr. Gerard Swain 

Acting Executive Director 

TexasBoard 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, 5 3( 1). 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 twothirds 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 

p. 042 
Gerard Swam - Page 2 (w160) 

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 IS])? 

Before answering your first question, we would like to clarify the status of an 

ex @cio board member. An cx 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 CJ.S. Er officio at 851(1964). Er officio thus 

refers only to the means by which a person becomes a member of a board. By itse& 

ex o#icio membership status does not make an er officio member inferior to an 

appointed member.1 Under this particular act, however, ex officio members of the 

board cannot vote. 

With reference to thii 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. ‘Ibe 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 Gpen 

Meetings Act, to which the board is subject (V.T.C.S. art. 4442d. 0 3(11)), state 

whether er officio members are included in determining the presence of a qu0rtmr.r 

See V.T.C.S. art. 6252-17, 00 l(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 CJ.S. m at 171 

(1951). Thus, “quorum” signifies that number of the members of a body that is 

legally qualified to transact business by voting. Ratninz v. Zapata Gnuuy In&p 

Sch. Dirt., 273 S.W.2d 903,905 (Tea. Civ. App.-San Antonio 1954); Be.afond Cowy 

~enotcthatthcadprovidcathattbcboPrdltsoissubjccttothcAdmiaistrativcRoecdun 

ad Texas Registry Act (APTRA), V.T.C.S. art. 6252-l%. V.T.CS. ut. 4442d, i 3(11). Notbiq in 

A?TRA -rs your quc&as. 

p. 843 
Gerard Swam - Page 3 04-160) 

Hosp. L&-t. v. Gnmy of Bedford, 304 S.W2d 697, 704 (Penn. Ct. App. 1957) 

(“quorum” ordinarily means majority of all members entitled to vote); 74 C.J.S., 

sups. & officio members who are unqualified to vote are unqualified to transact 

business on behalf of the govermnental body. In our opinion, therefore, the er 

ojjicio, nonvoting members on the board should not be counted in determining 

whether a quorum is present. See Gov’t Code 0 312.004, see o&o Leugue Gen Inr 

Cb. v. Michigan Catartrophic Claims A&n, 458 N.W.2d 632,636 (Mich. 1990) (not 

counting ex officio, nonvoting member in determining presence of quorum); In nr 

She&on CWlege, 263 A.2d 810,811 (NJ. Super. ct. App. Div. 1970) (same). But see 

Pedion of Kimche#, 556 P&l 355,357 (NM. Ct. App. 1976). cert. denied sub nom., 

Sandoval County Ihluation prorests Bd. v. Kinrcw, 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 er office, 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 S25.00 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 er officio member holds, an a 

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 positions4 

31ndecd, co&r&g the stahrtc to rqti that a @cio, nonwtiq memb be included in the 

mrmber accessmy for a quorum would be nonsensi cd Forhtance,iftheaq@&,nonvoting 

memhas were to be included in the quorum c.ahla* the number of members necesary for a 

quorum would be seven. If aI thnx er o&io members attended a meeting along with four appointed, 

votingmembcrs,aqu-wouldbcprcscnt,~thcboardoouldproacdtocond~busincas. 

Despite the prcsenee of a quorum, h-r, the board could not finally promulgate, alter, or abolish 

soy rules or regdatioos hecause the board could not generate a twchirds majority vote on any issue. 

See bfm p. 4 (explaining number of members necesuy to umsthte hvo-thirds majority). 

4Wrcwisc,~on9(4)ofthcadrcquitcscach’mcmbwoftheboard’tobc~forit 

least me-half of the board’s regularly sckdukd meetings held each year. Failure to attend the 

mpisitc number of meetiag results ia the board member% aulomatie removal from the board. 

V.T.C.S. art. 4442d 0 4(S). As WC diswmed sup, ao a @cio board member is a member sokly by 

virtueofmeluicdorappointedofficethatpersonhoi& faotherwor~a&ciomember&dpoathc 

hoard attaches to the person’s office. The officeholder cannot be remowd from his or Ihex a q&i0 

pc6ition as a result of the offkeholderk failure to attend a certain number of moztings. Thug ‘[e]acb 

p. 844 
Gerard Swam - Page 4 Ci+160) 

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 cotmts 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. Gezgv, 264 S.WJd 778, 780 (“lh Civ. App.-San 

Antonio 1954, writ refd n&e.); 63 A.L.RJd 1072, 1081-82 (1975). On its face, 

section 8(a) requires only a “two-thirds majoriv; the section does not require twothirds plus one. Accordingly, if all nine voting members of the board are quabfkd 

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 quali6ed 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 

Iicemsure Act, V.T.C.S. article 4442d, for purposes of 

determining the lwmber of members of the Texas Board of 

Licensure for Nursing Home Administrators su5kient to 

constitute a quorum, the board must base its calculation only on 

the total number of appointed, voting board members. Ex 

oJ+icio, nonvoting members are not counted for pmposes 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 mmtber 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 

p. 845 
Gerard Swain - Page 5 (lN-160) 

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 

MARYKELLER 

Deputy Assistant Attorney General 

RENEAHIcKs 

Special Assistant Attorney General 

MADELEINB B. JOHNSON 

Chair, Opinion Committee 

Prepared by Kymberly K. Oltrogge 

Assistant Attorney General 

p. 846