                         Office of tfy (?lttornep &nerd
                                     %btateof Eexae
DAN MORALES                           August 27,1992
 ATTORSEY
      GENERAL


    Mr. Gerard Swain                          Opinion No. DM-160
    Acting Executive Director
    TexasBoard of Licensure                   Re: Whether, under article 4442d,
     for Nursing Home Administrators          V.T.C.S., the presence of ex officio
    4800 North Lamar, Suite 310               members of the Texas Board of Licensure
    Austin, Texas 78756-3177                  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 two-
    thirds 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



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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       yourquc&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 prorestsBd. v. Kinrcw, 558 P.2d 620 (N-M. 1976).’

        Accordingly, we believe that this portion of section 4(3) should be inter-
preted 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. 4442d0 4(S).As WCdiswmed 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 Ihexa 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 two-
thirds 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




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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




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