Untitled Texas Attorney General Opinion

GREG A B B O T T

July 9, 2007

The Honorable Geraldine "Tincy" Miller Opinion No. GA-0554
Chair, State Board of Education
1701 North Congress Avenue Re: Whether the State Board of Education may
Austin, Texas 78701- 1494 adopt a procedural rule that requires a vote of
greater than a majority of the number of
members of the board fixed by statute, i.e., a
"supermajority" (RQ-056 1-GA)

Dear Ms. Miller:

You ask whether the State Board of Education (the "Board") may adopt a procedural rule that
requires a vote of greater than a majority of members of the Board fixed by statute.'

The Board "is composed of fifteen members elected from [single-member] districts." TEX.
EDUC.CODEANN.tj 7.101(a) (Vernon 2006). "At the board's first regular meeting after the election
and qualification of new members, the board shall organize [and] adopt rules ofprocedure . . . ."
Id. tj 7.107(b) (emphasis added). The Board refers to these rules of procedure as "operating rules"
and last amended such rules on February 7,2007. See TEXASEDUCATION AGENCY,STATEBOARD
OF EDUCATION OPERATING RULES,available at http://www.tea.state.tx.us/sboe/op~rules.html (last
visited June 29,2007). You ask the following questions:

1. May a public body, consistent with Section 3 11.013,
Government Code, adopt a procedural rule that requires a vote
greater than a majority of the members fixed by statute? Please
assume for purposes of this question that no statutory or
constitutional provision requires more than a majority vote.

2. If your answer to my first question is "yes," may that body
suspend such a procedural rule by a vote of a majority of the
members fixed by statute pursuant to Section 311.013,
Government Code?

Request Letter, supra note 1, at 2.

'See Letter from Honorable Geraldine "Tincy" Miller, Chair, State Board of Education, to Honorable Greg
Abbott, Attorney General of Texas, at 2 (Jan. 10, 2007) (on file with the Opinion Committee, also available at
http:/lwww.oag.state.tx.us) [hereinafter Request Letter].
The Honorable Geraldine "Tincy" Miller - Page 2 (GA-0554)

Section 3 11.013 of the Government Code provides as follows:

(a) A grant of authority to three or more persons as a public
body confers the authority on a majority of the number of members
fixed by statute.

(b) A quorum of a public body is a majority of the number
of members fixed by statute.

TEX. GOV'TCODEANN. 5 31 1.013 (Vernon 2005). In Attorney General Opinion GA-0412, we
addressed the validity of the voting procedures of the Board of Managers of the Harris County
Hospital District (the "District Board"). See Tex. Att'y Gen. Op. No. GA-0412 (2006). The District
Board had adopted Robert's Rules of Order, which contains a quorum requirement similar to that
found in section 3 11.013. Referring both to section 3 11.0 13(b) and the common-law rule, the
opinion concluded that the District Board should consider a proposition enacted if it receives "a
majority vote of the members present and voting at a meeting where a quorum is present." Id. at 5.

Section 31 1.013 does not speak to the possibility of a governmental body adopting a
"supermajority" rule, i.e., one that requires a vote of greater than a majority of the number of
members of a board present and voting. In order to answer that question, we must turn to the
common law. In 1922, a Texas court stated the common-law rule:

The general rule is that, in the absence of an express provision2to the
contrary, a proposition is carried in a deliberative body by a majority
of the legal votes cast.

Comm 'rs Court of Limestone County v. Garrett, 236 S.W. 970,973 (Tex. 1922) (footnote added).
Thus, the general rule in this state is that a governmental body must conduct its business on the basis
of a majority of a quorum of members present and voting. As a result, a governmental body may not
adopt a rule that requires, in some instances, the vote of a "supennajority." The "majority rule"
requirement, however, being a common-law doctrine, may be overcome by statute. See Diversion
Lake Club v. Heath, 86 S.W.2d 441, 444 (Tex. 1935); TEX.EDUC.CODEANN.$5 21.042, 61.056
(Vernon 2006); c$ Tex. Att'y Gen. Op. No. JM-1087 (1989) at 2 (home-rule charter provision is
sufficient to overcome common-law doctrine of incompatibility with regard to dual office holding
in that city); but cf Tex. Att'y Gen. Op. No. JC-0225 (2000) at 3-4 (home-rule city lacks authority
to waive common-law rule with regard to appointment to governing body of another political
subdivision).

'We construe the term "express provision" to mean "express constitutional or statutory provision." "The rule
of decision in this state consists of those portions of the common law of England that are not inconsistent with the
constitution or the laws of this state, the constitution of this state, and the laws of this state." TEX.CIV.PRAC.& REM.
CODEANN. § 5.001 (Vernon 2002). It is well established in Texas jurisprudence that "[tlhe common law prevails in
Texas unless inconsistent with the Constitution and laws of the state or the Unitedstates." See Missouri-Kansas-Texas
R. R. Co. v. Shelton, 3 83 S.W.2d 842, 846 (Tex. Civ. App.-Dallas 1964, writ ref d n.r.e.), cert. denied, 3 82 U.S. 845
(1965) (emphasis added).
The Honorable Geraldine "Tincy" Miller - Page 3 (GA-0554)

In the situation you pose, the question is thus whether the grant of procedural rule-making
authority given to the Board in section 7.107(b) of the Education Code is sufficient to overcome the
common-law doctrine of majority rule. In our opinion, it is not. Although the Board is created by
the Texas Constitution, its organization and duties are generally prescribed by the Legislature. TEX.
CONST.art. VII, 5 8. Nothing in the Board's enabling statutes indicates a legislative intent to permit
the Board to adopt operating procedures that override the common law. Indeed, as you note, certain
statutes and the Texas Constitution itself impose supermajority requirements in specific instances.
See Request Letter, supra note 1, at 1 n.5; see, e.g., TEX.CONST.art. VII, fj 5(a) (two-thirds vote of
the total membership of Board required to determine total amount distributed from permanent school
fund to available school fund); TEX.EDUC.CODEANN.$5 7.102(0(2) (Vernon 2006) (adopted rule
may be given earlier effective date by affirmative vote of two-thirds of members of the Board),
21.042 (Board may reject rule of the State Board for Educator Certification by a vote of at least two-
thirds of the members present and voting). These provisions indicate that both the voters and the
Legislature were aware in certain instances of how to impose, or permit, a supermajority
requirement.

We conclude that the Board's authority to adopt rules of procedure does not encompass the
authority to adopt rules that impose, in certain instances, a supermajority voting requirement. In
light of our answer to your first question, we need not address your second question.
The Honorable Geraldine "Tincy" Miller - Page 4 (GA-0554)

S U M M A R Y

The authority of the State Board of Education to adopt rules
of procedure does not encompass the authority to adopt rules that
impose, in certain instances, a supermajority voting requirement.

Very truly yours,

KENT C. SULLIVAN
First Assistant Attorney General

NANCY S. FULLER
Chair, Opinion Committee

Rick Gilpin
Assistant Attorney General, Opinion Committee