Untitled Texas Attorney General Opinion ( 2002 )

OFFICE OF THE ATTORNEY GENERAL. STATE OF TEXAS
JOHN CORNYN
November 20,2002
The Honorable Russell W. Malm Opinion No. JC-0580
Midland County Attorney
200 West Wall Street, Suite 104 Re: Whether the presence of a nonvoting member
Midland, Texas 7970 1 counts in determining a quorum of an appraisal
district board, and related questions (RQ-0559-JC)
Dear Mr. Malm:
You ask three questions relating to the authority of a nonvoting member of an appraisal
district board. For the reasons set forth below, we conclude that, pursuant to sections 6.03 and 6.04
of the Tax Code, a nonvoting director should be counted in determining whether a quorum exists for
a meeting of the board. If an appraisal district board consists of six members, the number of
directors necessary to constitute a quorum is four. We also conclude that, under section 6.04, a tax
assessor-collector who serves as a nonvoting member is eligible to serve as a board officer.
Furthermore, an appraisal district board may itself determine whether a nonvoting member has the
authority to make or second motions.
Section 6.03(a) of the Tax Code provides, in relevant part:
The appraisal district is governed by a board of directors. Five
directors are appointed by the taxing units that participate in the
district as provided by this section. If the county assessor-collector
is not appointed to the board, the county assessor-collector serves as
a nonvoting director.
TEX. TAX CODE ANN. 9 6.03(a) (Vernon 2001). Likewise, section 6.04(a) of the Tax Code declares:
A majority of the appraisal district board of directors constitutes a
quorum. At its first meeting each calendar year, the board shall elect
from its members a chairman and a secretary.
Id. 8 6.04(a). You indicate that the Midland County Tax Assessor-Collector has not been appointed
to the Midland Central Appraisal District Board (the “Board”). Consequently, under the terms of
section 6.03(a) of the Tax Code, the Midland County Assessor-Collector “serves as a nonvoting
director.” Id. 9 6.03(a). You first ask whether the Assessor-Collector is counted as a member of the
Board in determining a quorum.
The Honorable Russell W. Malm - Page 2 (JC-0580)
When a statute is clear and unambiguous, its words are given their common meaning. Ex
parte Evans, 964 S.W.2d 643,646 (Tex. Crim. App. 1998); Raines v. Sugg, 930 S.W.2d 912,913
(Tex. App.-Ft. Worth 1996, no writ). As the Texas Supreme Court has noted, “it is cardinal law in
Texas that a court construes a statute, ‘first, by looking to the plain and common meaning of the
statute’s words.’ If the meaning of the statutory language is unambiguous, we adopt, with few
exceptions, the interpretation supported by the plain meaning of the provision’s words and terms.”
Fitzgerald v. Advanced Spine Fixation Sys., Inc., 996 S.W.2d 864,865 (Tex. 1999) (citing Liberty
Mut. Ins. Co. vs. Garrison Contractors, Inc., 966 S.W.2d 482,484 (Tex. 1998)).
Section 6.03(a) of the Tax Code states that “[tlhe appraisal district is governed by a board
of directors.” TEX. TAX CODE ANN. 8 6.03(a) (Vernon 2001). Furthermore, a county assessor-
collector who has not been appointed to the board “serves as a nonvoting director.” Id. Section
6.04(a) declares that “[a] majority of the appraisal district board of directors constitutes a quorum.”
Id. 6 6.04(a). In our opinion, it follows from the “plain and common meaning” of the statutory
language that the Assessor-Collector is a member of the Board for purposes of determining the
presence of a quorum. Thus, there are six directors comprising the Midland Central Appraisal
District Board. Because a quorum is defined in Texas law to mean a “majority,” it follows that the
presence of four members of the Board is necessary to constitute a quorum. See TEX. GOV’T CODE
ANN. 8 311.013(b) (V emon 1998) (“A quorum of a public body is a majority of the number of
members fixed by statute.“).
We must also address a prior opinion of this office that would appear to require a contrary
result. In Attorney General Opinion DM- 160 ( 1992), this office considered a request fkom the Board
of Licensure for Nursing Home Administrators as to whether three ex officio, nonvoting members
should be counted in determining the presence of a quorum. The opinion concluded that “the ex
officio, nonvoting members on the board should not be counted in determining whether a quorum
is present.” Tex. Att’y Gen. Op. No. DM-160 (1992) at 3. The principal authority cited for this
proposition is a 1957 middle-level appellate case from Tennessee, which in turn relies solely on a
quotation from a legal encyclopedia. See Bedford County Hosp. Dist. v. County of Bedford, 304
S.W.2d 697,704 (Tenn. Ct. App. 1957) (“Ordinarily, a quorum means a majority of all entitled to
vote. 74 C.J.S. Quorum p. 171.“).
A later and better reasoned case, in our opinion, supports the contrary view. See Petition of
Kinscherfl, 556 P.2d 355 (NM. Ct. App. 1976), cert. denied, 558 P.2d 620 (N.M. 1976). A New
Mexico statute provided for a “county valuation protests board” to be created in every county. Each
board consisted of three appointed voting members and three county commissioners as ex officio
nonvoting members. Id. at 357. The particular board at issue in Kinscherff argued that only the
voting members could be counted in determining the presence of a quorum. The court disagreed:
Had the legislature intended that the non-voting members of the
Board be considered as mere supernumeraries they would have so
stated. Or, had the legislature intended that the presence of two of the
voting members would constitute a quorum they would have so
specified. Absent any such statutory provisions the common-law
The Honorable Russell W. Malm - Page 3 (JC-0580)
rule applies, i.e., a majority of all of the members of a board or
commission shall constitute a quorum.
Id. Although there is admittedly little in the jurisprudence of other jurisdictions to guide us, we
believe that the Kinscherff case reliably states the common law rule - that a nonvoting member of
a board or commission should be counted in determining the presence of a quorum. As a result, we
overrule any statement to the contrary in Attorney General Opinion DM- 160 (1992).
You also ask whether the Midland County Tax Assessor-Collector may serve as an officer
of the Board. Section 6.04(a) of the Tax Code declares that “[a]t its first meeting each calendar year,
the board shall elect from its members a chairman and a secretary.” TEX. TAX CODEANN. 9 6.04(a)
(Vernon 2001). As we have previously noted, section 6.03(a) clearly states that an assessor-collector
who is not appointed to the board of an appraisal district “serves as a nonvoting director.”
Id. 0 6.03(a). B ecause the Assessor-Collector is thus a “member” of the Board, he is eligible, under
the terms of section 6.04(a), to serve as the Board’s chairman or secretary.
Finally, you ask whether the Assessor-Collector, as a nonvoting member, may make and
second motions. In our opinion, whether an assessor-collector may do so is an internal matter of an
appraisal board, and consequently, the Board may opt to allow or disallow the Assessor-Collector’s
authority to make and second motions. Although there appears to be no relevant law on this matter,
we may infer an answer from several sources. In the first place, section 6.04(b) of the Tax Code
states that “[tlhe board may meet at any time at the call of the chairman or as provided by board
rule.” TEX. TAX CODE ANN. 0 6.04(b) (Vernon 2001) (emphasis added). This clause implies that
a board is authorized to adopt rules governing its own internal procedures. In Attorney General
Opinion DM-228 (1993), this office considered whether a commissioners court was permitted to use
Robert’s Rules of Order for the purpose of governing discussion in its meetings, and whether a
treatise might be used to regulate the conduct of meetings. The opinion concluded that “[i]f the
commissioners court wishes its meetings to be conducted according to Robert’s Rules of Order or
of those provisions of a treatise that are consistent with law, and to require compliance with those
provisions from all members of the court, the court must formally vote to adopt the provisions.”
Tex. Att’y Gen. Op. No. DM-228 (1993) at 3. An appraisal district board, like a commissioners
court, is a creature of statute, and, as such, may adopt only those rules that are consistent with
statutory law. See Canales v. Laughlin, 2 14 S.W.2d 45 1 (Tex. 1948). Nevertheless, as in Attorney
General Opinion DM-228, we see no impediment to an appraisal district board adopting a rule to
determine whether its nonvoting member is entitled to make and second motions. See also Tex.
Att’y Gen. Op. No. DM-473 (1998) (issue of agenda preparation is a matter of internal city council
procedure). We conclude therefore that, although a nonvoting director of an appraisal district board
is not entitled by statute to make and second motions, neither is he statutorily prohibited from doing
so. An appraisal board may determine by rule whether to permit that member to make and second
motions.
The Honorable Russell W. Malm - Page 4 (JC-0580)
SUMMARY
Under the provisions of sections 6.03(a) and 6.04(a) of the
Tax Code, an assessor-collector who is a nonvoting member of an
appraisal district board is counted in determining the presence of a
quorum. Such individual may in turn serve as chairman or secretary
of the board. An appraisal district board may determine by rule
whether to permit the assessor-collector to make and second motions.
Attorney General Opinion DM- 160 (1992) is overruled to the extent
that it conflicts with this conclusion.
Attorney General of Texas
HOWARD G. BALDWIN, JR.
First Assistant Attorney General
NANCY FULLER
Deputy Attorney General - General Counsel
SUSAN DENMON GUSKY
Chair, Opinion Committee
Rick Gilpin
Assistant Attorney General, Opinion Committee