August lo,2000
The Honorable Susan Combs Opinion No. JC-0267
Commissioner
Texas Department of Agriculture Re: Construction of section 58.014(b), Agriculture
1700 North Congress Avenue Code, which relates to the voting procedures of the
Room 933 board of the Texas Agricultural Finance Authority
Austin, Texas 78701 (RQ-olSS-JC)
Dear Commissioner Combs:
You have asked this office to construe section 58.014(b) of the Agriculture Code, which
concerns the decision-making procedures ofthe Texas Agricultural Finance Authority (the “TAFA”).
The statutory language permits such decisions by the “affirmative vote of at least three” members
of a nine-member board. TEX. AGRIC. CODE ANN. 5 58.014(b) (Vernon Supp. 2000). We do not
read this language to permit a minority of board members to countermand a majority. Such a result
is not required by the plain language of the statute and would, as you suggest, be absurd. On the
other hand, given the unamended language of section 58.014(b) of the Agriculture Code, it is
possible for an affirmative vote of three members of the TAFA to pass a resolution when those three
members constitute a majority of a quorum ofthe board. This result, while anomalous, is not absurd.
While the statutory language at issue may have been a matter of legislative oversight, the correction
of such oversight, if any, is a matter for the legislature.
Section 58.014(b) provides, “A majority of the voting membership of the board constitutes
a quorum. The board shall act by adopting resolutions. The affirmative vote of at least three
directors is necessary to adopt a resolution.” Id. (emphasis added). As you point out, when this
provision was adopted, the board consisted of six members. In 1993, however, the legislature
increased the board membership to nine. See Act of May 24, 1993, 73d Leg., RX, ch. 538, 5 1,
1993 Tex. Gen. Laws 2020 (amending section 58.012). It did not, however, amend the language of
section 58.014(b). Accordingly, as younote, “it is possible for a resolution to be adopted or enacted
and Board action taken by approval of only one-third of the TAFA Board, clearly not a quorum (or
majority) of the entire Board.” Letter from Honorable Susan Combs, Commissioner, Texas
Department of Agriculture, to Honorable John Comyn, Texas Attorney General, at 1 (Feb. 17,200O)
(on file with Opinion Committee).
As we conceive it, the possible ways in which your concern could eventuate may be divided
into three logical categories. In the first, three members of the board approve a resolution while a
The Honorable Susan Combs - Page 2 (X-0267)
majority vote otherwise, and the three assert that pursuant to the last sentence of section 58.014(b)
their action constitutes approval. In the second, three members of the board vote contrary to a
majority vote of approval and assert that their action constitutes a veto. In the third, three members
constituting a majority of the voting members present vote in favor of or against a resolution. These
constitute the possible logical permutations. (For the sake of convenience, we will not consider all
of the possible numerical permutations.)
While we agree with your suggestion that the results in which a minority overrules a majority
are absurd, we do not believe it is necessary to invoke the absurd result rule to gainsay these possible
interpretations because the statutory language does not necessitate them. The sentence in question
does not say that three members may adopt a resolution; it says that “at least three” may. TEX.
AGRIC. CODE ANN. 8 58.014(b) (Vernon Supp. 2000). In either of these situations, the board
majority itself, as well as the three member minority, constitutes “at least three directors.”
Accordingly, we construe section 58.014(b) as requiring for the adoption ofaresolution the approval
of a majority of the board members voting on it, which majority will consist of “at least three
directors.”
The third possibility, in which three members of the board constitute a voting majority of
those present, can occur only when a bare quorum of the board - five members - votes. Pursuant
to the first sentence of section 58.014(b), “A majority of the voting membership of the board
constitutes a quorum.” Id. In this situation a decision could be made by a majority of the quorum
who nevertheless constituted only a third ofthe full board. Such a situation, while anomalous, is not
absurd.
This anomalous result may well not have been intended by the legislature, as you suggest.
There is no legislative history to the contrary of which we are aware. Even presuming that the
legislature simply overlooked the necessity of amending the final sentence of section 58.014(b) by
changing the word “three” to “five,” however, courts have long held that the correction of such
omissions and oversights is a matter for the legislature. See Gilmore Y. Waples, 188 S.W. 1037,
1039 (Tex. 1916) (It is not the function ofthe judiciary to “correct what they may deem excesses or
omissions in legislation.“). This office cannot usurp that role.
Accordingly, we conclude that the language of section 58.014(b) of the Agriculture Code
does not permit a minority of the board of the TAFA to overrule the decision of a majority. That
language does, however, permit an affirmative vote of three members of the board to pass a
resolution when those three members constitute a voting majority of a quorum of the board. While
this result may have been the result of legislative oversight, the correction of such oversight, if any,
is a matter for the legislature.
The Honorable Susan Combs - Page 3 (X-0267)
SUMMARY
Given the unamended language of section 58.014(b) of the
Agriculture Code, it is possible for an affirmative vote of three
members of the Texas Agricultural Finance Authority to pass a
resolution when those three members constitute a majority of a
quorum of the board. While the statutory language at issue may have
been a matter of legislative oversight, the correction of such
oversight, if any, is a matter for the legislature.
Attorney General of Texas
ANDY TAYLOR
First Assistant Attorney General
CLARK RENT ERVIN
Deputy Attorney General - General Counsel
ELIZABETH ROBINSON
Chair, Opinion Committee
James E. Tourtelott
Assistant Attorney General - Opinion Committee
Untitled Texas Attorney General Opinion
Combined Opinion