                             ATTORNEY GENERAL OF ,TEXAS
                                          GREG       ABBOTT




                                             January 6, 2009



Mr. Robert Scott                                     Opinion No. GA-0689
Commissioner of Education
Texas Education Agency                               Re: Whether section 11.051 (a-I), Education Code,
1701 North Congress Avenue                           alters the common-law standard for determining
Austin, Texas 78701-1494                             the number of votes necessary for a school district
                                                     board of trustees to act in its official capacity
                                                     (RQ-0725-GA)

Dear Commissioner Scott:

       Section 11.051 (a-I), Education Code, provides that

               [u]nless authorized by the board, a member of the board may not,
               individually, act on behalf of the board. The board of trustees may
               act only by majority vote ofthe members present at a meeting held in
               compliance with Chapter 551, Government Code, at which a quorum
               ofthe board is present and voting.

TEX. EDUC. CODE ANN. § 11.051 (a-I) (Vernon Supp. 2008) (emphasis added). You ask whether
section 11.051 (a-I) changes the common-law standard for determining the majority vote of a board
of trustees of an independent school district. 1 You ask additional questions involving specific
hypothetical voting scenarios should we determine that section 11.051(a-l) changes the standard.
See Request Letter at 2.

        Under the common-law standard, a majority vote is generally determined from a majority of
those present and voting, excluding abstentions (assuming a quorum is present). See Webster v. Tex.
& Pac. Motor Transp. Co., 166 S.W.2d 75, 76-77 (Tex. 1942) (recognizing that where the
Legislature has committed a matter to a public body, the public body must act as a body and not by
individual members ofthe body acting separately); State v. Etheridge, 32 S.W.2d 828, 830-31 (Tex.
Comm'n App. 1930, judgm't adopted) (favorable vote by majority present and voting is generally
sufficient to adopt a measure). In practical terms, this means that "were the body composed of




       lRequest Letter (available at www.texasattomeygeneral.gov).
Mr. Robert Scott - Page 2                               (GA-0689)



twelve members, a quorum of seven could act, and a majority of that quorum, four, could bind the
body."2 Webster, 166 S.W.2d at 77.

        In construing statutes, the cardinal rule is to ascertain the intent ofthe Legislature. See In re
Canales, 52 S.W.3d 698, 702 (Tex. 2001). With respect to the abrogation ofthe common-law, it is
certainly true that "statutes can modify common law rules, but before we construe one to do so, we
must look carefully to be sure that was what the Legislature intended." Energy Servo Co. ofBowie,
Inc. v. Superior Snubbing Servs., Inc., 236 S.W.3d 190, 194 (Tex. 2007); see also Gallagher
Headquarters Ranch Dev., Ltd. v. City ofSan Antonio, No. 04-07-00325-CV, 2008 WL 2828718,
at *6 (Tex. App.-San Antonio July 23, 2008, pet. filed); Bruce v. Jim Walters Homes, Inc., 943
S.W.2d 121, 122-23 (Tex. App.-San Antonio 1.997, writ denied).

        As you point out, the text of section 11.051(a-l) does not itself answer your question.
Request Letter at 1-2. You suggest that the phrase in section 11.051(a-l)-"may act only by
majority vote of the members present"-eould be understood as a change to the common law by
requiring a vote of a majority of the members physically present at the meeting. Id. at 1; see also
supra note 2. And, you further suggest, the phrase-"at which a quorum is present and
voting"-could be understood to change the common law by requiring a vote from each member of
the quorum. Request Letter at 2; see also supra note 2. Or, you continue, the entire sentence could
be seen as an attempt to codify the common-law standard, while also referring to the requirements
of the Open Meetings Act. 3 See Request Letter at 2; see also TEX. GOV'T CODE ANN. §§ 551.002
(Vernon 2004) (requiring meetings ofgovernmental bodies to be open to the public), 551.001 (3 )(E)
(Vernon Supp. 2008) (defining governmental body to include a school district board of trustees).
We agree that on its face section 11.051 (a-I) could be construed to alter how the majority vote of
a school board is determined. But it is not clear from the text of section 11.051(a-l) that the
Legislature intended to. abrogate the common law with respect to the majority vote requirement.
Before we construe section 11.051 (a-I) to effect such a change we must "look carefully to be sure
[the change ofthe common law is] what the Legislature intended." Energy Servo Co. ofBowie, Inc.,
236 S.W.3d at 194. Accordingly, we consider extra-textual factors to determine whether the
Legislature intended to change the standard. See TEX. GOV'TCODEANN. § 311.023(1)-(3) (Vernon
2005) (authorizing consideration of, among other things, the object sought to be obtained, the
circumstances under which the statute was enacted, and the legislative history).


          2you provide factual scenarios to illustrate how section 11.051 (a-I) might impose requirements that differ from
the common-law standard. See Request Letter at 1-2. You describe a meeting of a seven-member board at which all
seven members are present and at which a "motion received three votes for and two against with two abstentions." Id.
Such a "measure would pass under the common-law rule but would not have received affrrmative votes of a majority of
the members present." ,Id. at 2. You also describe a seven-member board voting on a measure with two in favor, one
against, and four abstentions. See id In this scenario, the number ofmembers fixed for a quorum would not have cast
a vote. See id

         3If one were to construe section 11.051 (a-I) to restate the existing requirement that a meeting comply with the
Open Meetings Act and as a codification of the common-law standard, the phrase "and voting" is likely a misplaced
modifier such that the section should be read as: "The board oftrustees may act only by majority vote ofthe members
present [and voting] at a meeting held in compliance with Chapter 551, Government Code, at which a quorum of the
board is present."
Mr. Robert Scott - Page 3                      (GA-0689)



         The stated purpose of House Bill 2563 that enacted section 11.051 (a-I) is to clarify "the
precise roles of and relationship between [school district boards of trustees] and superintendents."
Sen. Research Ctr., Bill Analysis, Tex. Comm. Substitute H.B. 2563, 80th Leg., R.S. (2007); see also
Hearings on Tex. Comm. Substitute H.B. 2563 Before the Sen. Comm. on Educ., 80th Leg., R.S.
(May 17, 2007, Part II) (statement of Senator Leticia Van de Putte) ("This [bill] really details the
major responsibilities of [a] school board oftrustee in a way that parallels the major responsibilities
of the superintendent . . .. It clarifies the relationship. between the board of trustees and
superintendent in carrying out the governance and management function of the school district.").
And House Bill 2563 was enacted in circumstances under which anecdotal evidence and a newspaper
article highlighted complaints against individual school board members that "relat[ed] to operating
procedures, micromanagement of the district's. daily operations, and the threatening of district
employees." Sen. Research Ctr., Bill Analysis, Tex. Comm. Substitute H.B. 2563, 80th Leg., R.S.
(2007); see also Hearings on Tex. H.B. 2563 Before the House Comm. on Pub. Educ., 80th Leg.,
R.S. (Apr. 17,2007) (statement ofRepresentative Kelly Hancock) (referring to article in Fort Worth
Star Telegram discussing complaints made to Texas Education Agency about individual school
board members' inappropriate involvement in operations of school district).

       . Moreover, the legislative history of House Bill 2563 indicates that the bill was meant to
define the role of a school board member and distinguish it from the role of a superintendent-as
a kind ofjob description for a board trustee. In the hearings before the House Committee on Public
Education and the Senate Committee on Education, the testimony ofwitnesses and the bill's authors
focused solely on the provisions in the bill pertaining to the respective authority of, and relationship
between, the school board and the superintendent. See Hearings on Tex. H.B. 2563 Before the
House Comm. on Pub. Educ., 80th Leg., R.S. (Apr. 17, 2007) (statements of Representative Kelly
Hancock; David Duty, Tex. Ass'n Sch. Bds.; Mike Moses, Tex. Bus. & Educ. Coal.); Hearings on
Tex. Comm. Substitute H.B. 2563' Before the Sen. Comm. on Educ., 80th Leg., R.S. (May 17, 2007,
part II) (statement of Senator Leticia Van de Putte). The purpose, circumstances of enactment, and
the legislative history indicate to us that the Legislature intended House Bill 2563 to better define
the role of a school board trustee and to segregate the board's role and duties from those of the
superintendent, particularly with respect to governance and management duties. There is no
indication that the Legislature intended to alter the common-law majority vote requirement for a
school district board of trustees.

         Thus, absent clear indication in the text of section 11.051 (a-I) that the Legislature intended
to abrogate the common-law standard for determining a majority vote, and because we find no
indication in the extra-textual considerations ofany such legislative intent, we conclude that section
11.051 (a-I) does not change the standard for determining the number ofvotes necessary for a school
district board of trustees to act in its official capacity. Because we answer your first question in the
negative, we need not address your additional questions.
Mr. Robert Scott - Page 4                     (GA-0689)



                                       SUMMARY

                       Section 11.051(a-l), Texas Education Code, does not alter the
               common-law standard for determining the number ofvotes necessary
               for a school district board of trustees to act in its official capacity.




ANDREW WEBER
First Assistant Attorney General

JONATHAN K. FRELS
Deputy Attorney General for Legal Counsel

NANCY S. FULLER
Chair, Opinion Committee

Charlotte M. Harper
Assistant Attorney General, Opinion Committee
