Texas Attorney General Opinion: GA-0689 Page: 2 of 4
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Mr. Robert Scott - Page 2
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 of the Legislature. See In re
Canales, 52 S.W.3d 698, 702 (Tex. 2001). With respect to the abrogation of the 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 Serv. 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 of San 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 1997, writ denied).
As you point out, the text of section 11.051(a-1) does not itself answer your question.
Request Letter at 1-2. You suggest that the phrase in section 11.051(a-1)--"may act only by
majority vote of the members present"-could 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 of governmental 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-1) 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-1) that the
Legislature intended to abrogate the common law with respect to the majority vote requirement.
Before we construe section 11.051 (a-1) to effect such a change we must "look carefully to be sure
[the change of the common law is] what the Legislature intended." Energy Serv. 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'T CODE ANN. 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 11.05 1(a-1) 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 affirmative 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 of members fixed for a quorum would not have cast
a vote. See id.
3If one were to construe section 11.051(a- 1) 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 of trustees may act only by majority vote of the members
present [and voting] at a meeting held in compliance with Chapter 551, Government Code, at which a quorum of the
board is present."(GA-0689)
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Texas. Attorney-General's Office. Texas Attorney General Opinion: GA-0689, text, January 6, 2009; (https://texashistory.unt.edu/ark:/67531/metapth275585/m1/2/: accessed July 16, 2024), University of North Texas Libraries, The Portal to Texas History, https://texashistory.unt.edu; crediting UNT Libraries Government Documents Department.