DAN MORALES

ATTORSEY GENERAL 

## Office of tfy (?lttornep

%btate of Eexae August 27,1992 

## &nerd

Mr. Gerard Swain Acting Executive Director TexasBoard ofLicensure for Nursing Home Administrators 4800North 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 ofthe Texas Board ofLicensure 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, 53(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 ofthe board.

Your questions are as follows:
1. What constitutes a quorum of the Board? Do the ex officiomembers 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

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meeting, would the required number ofvotes to adopt a rule be six(6) or seven (7)? Ifone (1) voting member were absent from
a meeting, would the “two-thirdsmajority ofthe Board”be.based upon the number in attendance (eight [8]) or the number of appointed, approved, and sitting members (nine IS])?
Before answeringyour first question, wewould like to clarify the status of an ex@cio board member. An cxofficioboard member is a person whohas become a member ofa board byvirtue ofan elected or appointed office that person holds, no further appointment is necessary. 32A CJ.S. Er officioat 851(1964). Er officiothus refers onlyto the means bywhicha person becomes a member ofa board. Byitse&
ex o#icio membership status does not make an er officio member inferior to an appointed member.1 Under this particular act, however, exofficio members of the board cannot vote.
With reference to thii act, we believe that the legislature did not intend that the exofficiomembers be counted for purposes ofdetermining whether a quorum is present. ‘Ibe first sentence ofsection 4(3) ofthe act provides that “atany 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 officiomembers 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 “whenthe required number ofpersons 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.2d903,905 (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. 843Gerard 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 0312.004,see o&oLeugue Gen Inr Cb. v. Michigan Catartrophic ClaimsA&n, 458 N.W.2d 632,636 (Mich. 1990) (not counting ex officio, nonvoting member in determining presence of quorum); In nr She&onCWlege,

263 A.2d 810,811 (NJ. Super. ct. App. Div. 1970)(same). But see Pedion ofKimche#, 556P&l 355,357 (NM. Ct. App. 1976).cert.denied sub nom., SandovalCountyIhluationprorests Bd. v.Kinrcw, 558P.2d 620(N-M. 1976).’
Accordingly, we believe that this portion of section 4(3) should be interpreted as requiring a majority ofthe appointed, voting members ofthe 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 ofthe remainder ofsection 4(3), which specifies that “b]oard members shall receive a per diem of S25.00while 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 officiomember 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 officiopositions4

31ndecd,co&r&g the stahrtc torqti that a @cio, nonwtiq memb be included inthe mrmber accessmy for a quorum would be nonsensicd Forhtance,iftheaq@&,nonvoting memhas were to be included in the quorum c.ahla* the number of members necesary for a quorum would be seven. IfaI 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 finallypromulgate, alter, or abolish soy rules or regdatioos hecause the board could not generate a twchirds majority vote on any issue. Seebfm p. 4 (explainingnumber ofmembers 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 04(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 ofthe offkeholderk failure to attend a certain number of moztings. Thug ‘[e]acb

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

Your second question pertains to section 8(a) ofthe act, which authorizes the board to promulgate, alter, or abolish rules and regulations upon “approval by a two-thirds majority ofthe b]oard.” In determining the number ofvotes 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 ofAlamo 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-thirdsmajoriv; 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 ofvotes 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 ofmembers are present at the meeting

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to constitute a quorum). For purposes of determining the number of votes necessary to constitute a two-thirds majority, the number ofmembers present at the meeting is irrelevant.

DAN MORALES Attorney General ofTexas

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

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