                                 ATTORNEY GENERAL OF TEXAS
                                              GREG         ABBOTT




                                                 March 13,2006



The Honorable Mike Stafford                                Opinion No. GA-04 12
Harris County Attorney
1019 Congress, 15th Floor                                  Re: Voting procedures for Board of Managers of
Houston, Texas 77002                                       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 28 1 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?’

You ask in general about hospital districts created pursuant to Health and Safety Code chapter 28 1,
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
members2 appointed by the Harris County Commissioners Court. See TEX. HEALTH& SAFETY CODE
ANN. $28 1.02 1(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 28 1 nor any




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

         ‘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].
The Honorable Mike Stafford - Page 2                    (GA-0412)




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

                Ouorum
                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 3 Rules of Order3 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 l-2.

         The quorum requirement established by article VIII(6) is consistent with Government Code
section 3 11 .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. 0 3 11.013(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



        3Robert’s Rules of Order codifies present-day   parliamentary   law. See H. ROBERT’SRULESOF ORDER,NEWLY
REVISED(10th ed.), p. XXV.
The Honorable Mike Stafford - Page 3                    (GA-0412)




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 1X(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’SRULES OF ORDER,NEWLY
REVISED(10th ed.), p. 3 87,l. 9-l 3. This rule is consistent with the common-law rule as stated by
the Texas Supreme Court in Webster v. Texas & Paczjk 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’SRULESOF 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



         4We 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-Braa’y 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.
The Honorable Mike Stafford - Page 4              (GA-0412)




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, 8 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.
The Honorable Mike Stafford - Page 5         (GA-0412)




                                      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,




                                             Attorn&G&eral       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
