Can a Texas state board adopt its own rule requiring a supermajority vote to pass something?

TX AG Opinion GA-0554: Can a state board require a supermajority vote by its own rule?

Plain-English summary

The Chair of the Texas State Board of Education asked whether the Board, which has fifteen elected members, could write an operating rule requiring more than a simple majority to pass certain matters, a so-called supermajority, when no statute or constitutional provision already called for one. The Board adopts its own rules of procedure, so the question was whether that rule-making power stretched far enough to raise the bar for its own votes.

The Attorney General said no. Texas has a long-standing common-law rule that, absent an express constitutional or statutory provision to the contrary, a deliberative body decides matters by a majority of the legal votes cast, meaning a majority of a quorum present and voting. The Government Code reinforces the related quorum default: a grant of authority to a public body of three or more is exercised by a majority of the statutory membership, and a quorum is a majority of that membership. Neither the statute nor the common law leaves room for a board to impose a higher threshold on itself.

That majority-rule default can be overridden, but only by statute (or the constitution), not by a board's own procedural rules. The Board is created by the Texas Constitution, but its organization and duties are set by the Legislature, and nothing in the Board's enabling statutes showed any legislative intent to let the Board override the common-law majority rule through its operating rules. The opinion pointed out that when the Legislature or the voters wanted a supermajority in a specific situation, they said so expressly, for example the two-thirds vote needed to set the amount distributed from the permanent school fund, or to give a rule an earlier effective date. Those targeted supermajority provisions showed lawmakers knew how to require one when they intended to, which cut against reading a general grant of rule-making power as authorizing the Board to invent its own. Because the answer to the first question was no, the Attorney General did not reach the follow-up question about suspending such a rule.

Currency note

This opinion was issued in 2007. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

The Education Code and Government Code provisions on the State Board of Education's composition, rule-making, and public-body voting may have been amended since 2007. Confirm the current text of Government Code section 311.013 and the relevant Education Code sections before relying on this analysis.

Who this opinion affected (as of 2007)

The State Board of Education and its members: The opinion told the Board that its general power to adopt rules of procedure did not include power to require a supermajority to pass matters. Its votes were governed by the common-law majority rule unless a statute or the constitution said otherwise.

Other Texas public bodies: The opinion's reasoning rested on the general common-law majority rule and Government Code section 311.013, which apply broadly to public bodies, so the same logic reached other boards and commissions weighing self-imposed supermajority rules.

Anyone challenging or defending a board vote: The opinion identified the operative default, a majority of a quorum present and voting, and made clear that only a statute or constitutional provision, not an internal operating rule, could raise that threshold.

Common questions

Can a Texas board make its own rule requiring a two-thirds or other supermajority vote?
Under this opinion, no. The Attorney General concluded a board's authority to adopt rules of procedure does not include authority to impose a supermajority voting requirement on itself.

What is the default voting rule for a Texas public body?
A proposition passes by a majority of the legal votes cast, that is, a majority of a quorum present and voting. Government Code section 311.013 also provides that authority is conferred on, and a quorum is, a majority of the statutory membership.

Can the majority-rule default ever be changed to require a supermajority?
Yes, but only by statute or a constitutional provision. The opinion noted examples like the two-thirds vote the constitution requires to set the permanent-school-fund distribution. A board cannot do it through its own operating rules.

Why didn't the Board's general rule-making power authorize a supermajority rule?
The opinion found nothing in the Board's enabling statutes showing the Legislature intended to let the Board override the common law. That lawmakers expressly required supermajorities in specific situations indicated they knew how to do so when they meant to.

Background and statutory framework

The State Board of Education is composed of fifteen members elected from single-member districts, and at its first regular meeting after each election it organizes and adopts rules of procedure, which the Board calls its operating rules (Tex. Educ. Code Ann. § 7.101(a) (Vernon 2006); § 7.107(b)). Government Code section 311.013 provides that a grant of authority to three or more persons as a public body confers the authority on a majority of the statutory membership, and that a quorum is a majority of that membership (Tex. Gov't Code Ann. § 311.013 (Vernon 2005); see Tex. Att'y Gen. Op. No. GA-0412 (2006) at 5 (a proposition is enacted on a majority vote of the members present and voting at a meeting where a quorum is present)).

Section 311.013 does not address supermajority rules, so the opinion turned to the common law. The general rule, stated in 1922, is that absent an express provision to the contrary a proposition is carried in a deliberative body by a majority of the legal votes cast, meaning a governmental body conducts business on the basis of a majority of a quorum present and voting (Comm'rs Court of Limestone County v. Garrett, 236 S.W. 970, 973 (Tex. 1922)). The Attorney General construed "express provision" to mean an express constitutional or statutory provision, consistent with the rule that the common law prevails in Texas unless inconsistent with the constitution and laws of the state (Tex. Civ. Prac. & Rem. Code Ann. § 5.001 (Vernon 2002); Missouri-Kansas-Texas R. R. Co. v. Shelton, 383 S.W.2d 842, 846 (Tex. Civ. App.-Dallas 1964, writ ref'd n.r.e.), cert. denied, 382 U.S. 845 (1965)). The majority-rule doctrine may be overcome by statute (Diversion Lake Club v. Heath, 86 S.W.2d 441, 444 (Tex. 1935); Tex. Educ. Code Ann. §§ 21.042, 61.056 (Vernon 2006); cf. Tex. Att'y Gen. Op. No. JM-1087 (1989) at 2; but cf. Tex. Att'y Gen. Op. No. JC-0225 (2000) at 3-4).

The Board is created by the Texas Constitution, but its organization and duties are generally prescribed by the Legislature, and nothing in its enabling statutes indicated a legislative intent to let the Board adopt procedures overriding the common law (Tex. Const. art. VII, § 8). Where supermajorities were intended, the constitution and statutes imposed them expressly, for example the two-thirds vote to set the permanent-school-fund distribution, the two-thirds vote to give an adopted rule an earlier effective date, and the two-thirds vote to reject a rule of the State Board for Educator Certification (Tex. Const. art. VII, § 5(a); Tex. Educ. Code Ann. § 7.102(f)(2), 21.042 (Vernon 2006)). The Attorney General concluded the Board's rule-making authority does not encompass authority to impose a supermajority voting requirement, and so did not reach the second question about suspending such a rule.

Citations

Constitution and statutes:

• Tex. Const. art. VII, § 8
• Tex. Const. art. VII, § 5(a)
• Tex. Educ. Code Ann. § 7.101(a) (Vernon 2006)
• Tex. Educ. Code Ann. § 7.107(b)
• Tex. Educ. Code Ann. § 7.102(f)(2) (Vernon 2006)
• Tex. Educ. Code Ann. §§ 21.042, 61.056 (Vernon 2006)
• Tex. Gov't Code Ann. § 311.013 (Vernon 2005)
• Tex. Civ. Prac. & Rem. Code Ann. § 5.001 (Vernon 2002)

Cases:

• Comm'rs Court of Limestone County v. Garrett, 236 S.W. 970, 973 (Tex. 1922)
• Diversion Lake Club v. Heath, 86 S.W.2d 441, 444 (Tex. 1935)
• Missouri-Kansas-Texas R. R. Co. v. Shelton, 383 S.W.2d 842, 846 (Tex. Civ. App.-Dallas 1964, writ ref'd n.r.e.), cert. denied, 382 U.S. 845 (1965)

Attorney General opinions referenced: GA-0412 (2006), JM-1087 (1989), JC-0225 (2000).

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/greg-abbott/ga-0554
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/2007/ga0554.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain - the linked PDF is authoritative.

GREG ABBOTT

July 9, 2007

The Honorable Geraldine "Tincy" Miller
Chair, State Board of Education
1701 North Congress Avenue
Austin, Texas 78701-1494

Opinion No. GA-0554

Re: Whether the State Board of Education may 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-0561-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.[1]

The Board "is composed of fifteen members elected from [single-member] districts." TEX. EDUC. CODE ANN. § 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 of procedure . . . ." Id. § 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 TEXAS EDUCATION AGENCY, STATE BOARD 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 311.013, 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.

Section 311.013 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'T CODE ANN. § 311.013 (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 311.013. Referring both to section 311.013(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 311.013 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 provision[2] to 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 "supermajority." 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. CODE ANN. §§ 21.042, 61.056 (Vernon 2006); cf. 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).

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, § 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, § 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. CODE ANN. §§ 7.102(f)(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.

SUMMARY

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,

GREG ABBOTT
Attorney General of Texas

KENT C. SULLIVAN
First Assistant Attorney General

NANCY S. FULLER
Chair, Opinion Committee

Rick Gilpin
Assistant Attorney General, Opinion Committee

Footnotes

[1] 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://www.oag.state.tx.us) [hereinafter Request Letter].

[2] 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. CODE ANN. § 5.001 (Vernon 2002). It is well established in Texas jurisprudence that "[t]he common law prevails in Texas unless inconsistent with the Constitution and laws of the state or the United States." See Missouri-Kansas-Texas R. R. Co. v. Shelton, 383 S.W.2d 842, 846 (Tex. Civ. App.-Dallas 1964, writ ref'd n.r.e.), cert. denied, 382 U.S. 845 (1965) (emphasis added).