The Texas Motor Vehicle Commission has six members, a majority of whom constitute a quorum. Texas Motor Vehicle Commission Code, Tex.Rev.Civ.Stat.Ann. art. 4413(36), §§ 2.02, 2.08(a) (Vernon Supp.1993). The Commission is authorized to take final action upon a "majority vote of a quorum of the Commissioners". Id. § 3.08(g). The principal issue in this case is whether the Commission can reach a final decision on a vote of 2-1, with one commissioner abstaining. The court of appeals answered this question in the affirmative. 833 S.W.2d 683. We disagree.
Gulf Coast Sports, Inc. applied to the Commission for a license to sell new Honda motorcycles in League City. Two Honda dealers in the vicinity, Meador-Brady Management Corp. doing business as Pasadena Honda, and David R. Hubbard doing business as Galveston Honda, protested Gulf Coast's application and were admitted as parties to the proceeding. After taking evidence, the hearing examiner recommended to the Commission that the application be approved. The Commission rejected the hearing examiner's recommendation at a meeting attended by all parties and five of the six members of the Commission. The vote to deny Gulf Coast's application was 3-2, with the chairman voting to break what would otherwise have been a tie.
The Commission directed that an order reflecting its action be prepared. Fifteen days after the Commission meeting, the executive director of the Commission notified Gulf Coast's counsel by telephone that a final order had been signed, and four days later a copy of the order was mailed to Gulf Coast's counsel. The order bore the date of the Commission hearing. The day after it was mailed, or twenty days after the date of the hearing and order, Gulf Coast filed a motion for rehearing.
The challengers, Meador-Brady and Hubbard, opposed the motion for rehearing and, for reasons we discuss below, moved to dismiss it as being untimely filed. The Commission granted the motion for rehearing by a vote of 4-1, with one commissioner—the one previously absent—failing to vote, and the sole vote against rehearing cast by a commissioner who has originally voted to grant the license. The application was scheduled to be reconsidered at a later meeting of the Commission.
That meeting was attended by the chairman and three other commissioners. The commissioner who had not voted in this proceeding resigned from office the day before the meeting. One of the commissioners who had voted to deny Gulf Coast's application was absent. The three other commissioners voted the same way they had the first time, so that the vote was 2-1 to grant the application. This time the chairman did not vote. The Commission tells us in its brief that it is customary for the chairman to abstain except to break a tie or to create a tie in order to defeat an action. Based upon the vote at this
The three votes taken are summarized in the following table:
----------------------------------------------------------------------------- LICENSE REHEARING LICENSE 1st Meeting 2d Meeting ----------------------------------------------------------------------------- Collins Chr. Burton Collins FOR Horton Collins Horton Cook Jones Chr. Burton Horton Jones AGAINST Cook Jones NOT VOTING Chr. Burton NOT PRESENT Eversole Eversole Cook (office vacant)
On appeal, Meador-Brady and Hubbard argue (1) that Gulf Coast's motion for rehearing was untimely and the Commission's first order was therefore final, (2) that the second vote taken by the Commission did not authorize final action, and (3) that the decision to grant the application was not supported by substantial evidence. The court of appeals rejected each of these arguments.
We agree with the Commission and the court of appeals that Gulf Coast's motion for rehearing was timely filed, and therefore, the Commission had jurisdiction to grant a rehearing and issue a second order. Proceedings before the Commission are governed by the Texas Motor Vehicle Commission Code, TEX.REV.CIV.STAT.ANN. art. 4413(36) (Vernon Supp.1993) ("TMVCC"), and by the Administrative Procedure Act, TEX.GOV'T CODE §§ 2001.001-.902 ("APA") (formerly the Administrative Procedure and Texas Register Act, TEX.REV.CIV.STAT.ANN. art. 6252-13a (Vernon Supp.1993) ("APTRA"))
Although Gulf Coast's motion was not filed before the statutory deadline, it was filed within five days of the date the Commission first notified Gulf Coast of the order and the day after the Commission mailed Gulf Coast a copy. The TMVCC does not require the Commission to give parties notice of final orders and decisions, but the APTRA did, in section 16(b), which stated in part: "Parties
Meador-Brady and Hubbard next contend that the Commission's second order was not approved by a "majority vote of a quorum of the Commissioners", as required by section 3.08(g) of the TMVCC. Gulf Coast has two arguments in response. First, Gulf Coast argues that the statute is satisfied when action is approved by a majority of commissioners voting when a quorum is present. Thus, when a quorum of four is present and the vote is 2-1, as in this case, the Commission may take action. Second, Gulf Coast argues that an abstention should be deemed an acquiescence in the majority vote, so that in this case the vote was in effect 3-1 to grant the application. We reject both these arguments.
Gulf Coast's first argument is simply not a reasonable construction of the statute. We think that a "majority vote of a quorum" means a majority of the quorum itself, not a majority of those voting when a quorum is present.
Gulf Coast's second argument regarding the treatment of the chairman's abstention is more difficult. The argument is based upon an ancient common law rule, traced to Rex v. Foxcraft, also known as Oldknow v. Wainwright, 97 Eng.Rep. 683 (1760), which deems a member of a body who abstains from a vote to acquiesce in the action favored by a majority of the members voting. See J.R. Kemper, Annotation, Abstention from Voting of Member of Municipal Council Present at Session as Affecting Requisite Voting Majority, 63 A.L.R.3d 1072, 1078 n. 6 (1975). The rule has been distinguished, rejected, or ignored about as often as it has been followed,
Since we conclude that the order from which appeal has been taken is invalid, we need not consider whether there was substantial evidence to support it. Accordingly, the judgment of the court of appeals is reversed, and the case is remanded to the Commission for further proceedings.