Untitled Texas Attorney General Opinion ( 1988 )

THE ATTORRNEY GENERAL
OF TEXAS
May 13, 1988
Honorable Bob Bullock Opinion No. JM-903
Comptroller of Public
Accounts Re: Al+.hority of Racing Commis-
L.B.J. State Cffice sion members ?:o delegate duties,
Building and authority of Racing Cammis-
Austfn, Texas 78774 sion to contract with Te>.as
Veterinary Medical Diagnostic
Laboratory (RQ-1390)
Dear Mr. Bullock:
YOU ask several questions about the Texas Racing
Commission,L which regulates greyhound racing and horse
racing in Texas. V.T.C.S. art. 179e. You first ask a
series of question.: about the authority of commission
members to delegate their duties.
The Racing Act, V.T.C.S. art. 175e, s2.02, provides
that the commission shall consist of eight members: six
appointed by the governor with the advize and consent of the
Senate and two ex officio members, the chairman of the
Public Safety Commission and the Comptroller of Public
Accountr.. YOU ask the following questions about the
commission members' authority to delegate their duty to sit
on the commission:
(a) May the Chief Clerk of the Comptroller of
Public Accounts sit in the Comptroller's
absence as a voting member of the Commission?
--
P
1. Two of your questions are governed by the Open
?.feetingsAct, article 6252-17, V.T.C.S., and one is governed
by the Texas Open Records Act, article 6252-17a, V.T.C.S.
Those questions will be answered by separate letter.
p. 4454
Honorable Bob Bullock - Page 2 (JM-903)
(b) If he does so, should he be counted in
determining whether a quorum is present at
Commission meetings?
(c) May other Commission members send
substitutes to act for them in Commission
meetings that they are unable to attend?
(a) If (~1 is answered "yes ,It should the
substitutes for the other members be counted
in determining whether there is a quorum
present at Commission meetings?
(e) May the Commission allow substitutes for
the other members to vote in place of the
absent members?
(f) May the Commission allow substitutes for
the other members to sit for the absent
members and speak but not vote?
Your first question is whether the comptroller's chief
clerk may sit as a voting member of the commission. Section
403.003 of the Government Code provides:
(a) The comptroller shall appoint a chief
clerk who shall:
(1) perform the duties of the comptrol-
ler when the comptroller is unavoidably
absent or is incapable of discharging
those duties;
(2) act as comptroller if the office of
comptroller becomes vacant until
comptroller is appointed and qualified:
and
(3) under the comptroller's direction,
supervise the keeping of the books,
records, and accounts of the office and
perform other duties required by law or
the comptroller.
(b) The chief clerk shall take the
official oath and give bond in the amount of
$10,000, payable in the same manner as the
comptroller's bond, and conditioned on the
faithful performance of the duties of the
office.
p. 4455
Honorable Bob Bullock - Page 3 (JM-903)
P
Thus, when the comptroller is unavoidably absent or is
incapable of performing the duties of his office, his chief
- clerk is authorized to perform those duties. Your question,
then, is whether the comptroller's responsibility to sit as
a member of the Racing Commission constitutes a "duty of
office.*'
In Pfeffer v. Mahnke, 260 S.W. 1031 (Tex. Comm'n App.
1924, opinion adopted), the court considered whether the
comptroller's chief clerk was authorized to perform the
duties attaching to the office of comptroller as a member of
the state board of education. The court wrote:
It is observed that articles 4318 and
4343, respectively, require that the
secretary of state and the comptroller shall
each appoint a chief clerk. It is not
optional with either to appoint or not
appoint such chief clerk. The statute is
mandatory in providing for a chief clerk for
each. The offices of chief clerk for each is
thus created by statute. It is likewise
observed that the statutes provide that, in
the absence of the secretary of state, or his
inability to act from any cause, the chief
clerk may perform all the duties required by
law of that officer and that it shall be the
duty of the chief clerk of the comptroller to
discharge the duties of the comptroller when
he may be unavoidably absent or incapable
from sickness, or other causes, to discharge.
said duties.
The service of the secretary of state and
the comptroller on the board of education is
the performance by each of a duty attached by
the statute to the office held by each. The
duties are not personal. They are duties
attached to the offices. Any holder of the
office of secretarv of state or comotroller
must serve as a member of the board of
education as a Dart of the duties of those
offices resoectivelv. Since the statutes
provide that the chief clerks may
respectively perform the duties attaching to
/4 those offices, the chief clerks may, in the
contingencies mentioned in the statutes,
perform the particular duties attaching to
the offices of secretary of state and
comptroller by virtue of the statutes making
p. 4456
Honorable Bob Bullock - Page 4 (JM-903)
them members of the board of education. Z&l
such cases the chief clerks do not nerform
those duties by deleaation of authoritv from
their chiefs. Thev oerform them bv virtue of
authoritv of the Leaislature in the same wav
that their chiefs are authorized to perform
them
-- The Legislature could have provided
that, in the absence, etc., of the secretary
of state and comptroller, the chief clerks of
either or each should be members of the board
of education. The Legislature has done the
same thing in a different way by prescribing
that the chief clerks provided by statute
shall and may, in the absence of the
secretary of state and the comptroller,
perform the duties of those officers, among
which are duties arising from their member-
ship on the state board of education.
(Emphasis added.)
260 S.W. at 1033-34. Because the comptroller's respons-
ibility to sit as a member of the Racing Commission is
attached to his office rather than to him personally, it
follows from the court#s decision in Pfeffer v. Mahnke,
sunra, that the comptroller's chief clerk is authorized to
perform the comptroller's duty to sit as an ex officio
member of the Racing Commission when the comptroller is
unavoi.dably absent or is otherwise unable to act. It also
follows that when the chief clerk takes the place of the
comptroller as a member of the Racing Commission, he may
vote and should be counted in determining whether a quorum
is present.
YOU also ask whether other members of the commission
may send substitutes to act for them. It is well estab-
lished that, in the absence of express statutory authority,
a public official may not delegate non-ministerial duties.
M&dy v. Texas Water-Commission, 373 S.W.2d 793, 797 (Tex.
Civ. ADD. - Austin 1963, writ ref'd n.r.e.); Attorney
Generai-Opinion WW-66 (1957). A commission memberts duty to
participate in deliberations and decisions about the
regulation of greyhound and horse racing in Texas is
non-ministerial and may not be delegated. See Attorney
General Opinion H-884 (1976). Therefore, none of the
commissioners, including the comptroller, may deleoate their
authority to act as members of the commission. The
comptroller's chief clerk is authorized to sit as a member
of the commission in the comptroller's absence by virtue of
statutory authority, not by virtue of a delegation. Pfeffer
v. Mahnke, 260 S.W. at 1034.
p. 4457
Honorable Bob Bullock - Page 5 (JM-903)
YOU also ask whether the commission may allow
substitutes for other members to sit for the absent members
and speak but not vote. In the absence of express statutory
authority, a commission member may not delegate his respon-
sibility to deliberate at meetings. The commission may not
authorize such delegation by rule. See aenerallv H-188
(1973); see also Webster v. Texas & Pacific Motor TransDOrt
co., 166 S.W.2d 75 (Tex. 1942).
Three questions remain:
Whether the Commission would be authorized to
loan or otherwise transfer money to Texas A&M
to get ready for drug testing of racing
animals.
If not, may an interagency contract properly
be entered into between the Commission and
A&M to help A&M establish a lab to test
racing animals for drugs?
Whether the Commission is required to use
Texas A&M for drug testing of animals if
cheaper and equally effective drug testing of
animals is available through other sources.
Section 14.03 of the Racing Act provides, in part:
(a) The commission shall adopt rules
prohibiting the illegal influencing of the
outcome of a race, including but not limited
to the use of medication, stimulants, or
depressants to attempt to or to influence
illegally the outcome of a race.
(b) The commission may require prerace
testing by urinalysis, saliva testing, or
blood testing, by any combination of the
three, or by any other testing method
recognized by the racing industry to
determine whether such a drug, chemical, or
other substance has been administered and
shall require postrace testing by such a
method. The commission shall adopt rules
,- that require all such tests to be conducted
using state-of-the-art methods. On any
positive test showing the presence of
prohibited drugs, chemicals, or other
substances, the animal shall be immediately
disqualified and all persons who have
p. 4458
Honorable Bob Bullock - Page 6 (JM-903)
administered or applied the drug, chemical,
or other substance or any electric device or
spur may be immediately suspended pending
hearing by the stewards or judges with the
right of appeal to the commission. Such a
suspension may be stayed, in the discretion
of the commission only, during the pendency
of such appeal. The commission shall require
that all urine samples be frozen and main-
tained for a period of one year in order to
enable veterinarians and chemists to conduct
follow-up tests to detect and identify
prohibited drugs. All other specimens shall
be maintained for testing purposes in the
manner prescribed by the commission. Such a
test may also be required by the owner or
trainer of an animal or by the association at
whose racetrack the animal is entered in a
race meeting.
V.T.C.S. art. 179e, 514.03(a), (b). Subsections (d) and (e)
of section 3.07 of the act provide:
(d) Medication or drua testins nerformed
under Section 14.03 of this Act shall be
conducted either bv the Texas Veterinary
Medical Diaanostic Laboratorv or in
conjunction with or bv a orivate or DUbliC
aaencv that is avvroved bv the commission and
bv the Texas Veterinary Medical Diaanostic
Laboratorv and that is accredited bv the
American Association of Veterinarv Laboratory
Diasnosticians. Charges for services
performed under this section by the Texas
Veterinarv Medical Diaonostic Laboratorv or
bv an avvroved and accredited private or
public aoencv shall be forwarded to the
commission for avvroval as to reasonableness
of the charues for the services. Charges may
include but are not limited to expenses
incurred for travel, lodging, testing, and
processing of test results. The reasonable
charses associated with medication or drug
testina conducted under this Act shall be
paid bv the association that receives the
services. On the aonroval of the charses as
reasonable. the commission shall forward a
CODY of the charaes to the association that
receives the services for immediate oavment.
All persons performing testing services under
p. 4459
Honorable Bob Bullock - Page 7 (JM-903)
this section and Section 14.03 of this Act
must be licensed under Article 7 of this Act.
A person conducting tests under this section
is a state veterinarian for purposes of
Subsection (a) of this section.
(e) To pay the charges associated with
the medication or drug testing, an associa-
tion may use the money retained by the
association on tickets that are purchased as
wagers on winning horses or greyhounds and
that are not cashed by the holders of the
tickets. If additional amounts are needed to
pay a-3 charges, the association shall pay
those additional amounts. If the amount
retained exceeds the amount needed to pay the
charges, the association shall pay the excess
to the comptroller for deposit in the manner
provided by Section 3.09 of this Act.
(Emphasis added.)
V.T.C.S. art. 179e, §3.07(d), (e).
You ask whether the commission is authorized to loan or
transfer money to the Texas Veterinary Medical Diagnostic
Laboratory2 "to get ready for drug testing of racing
2. You phrase your questions in terms of the
commission's authority to contract with Texas A & M
University. We assume that you intend that reference to
mean the Texas Veterinary Medical Diagnostic Laboratory,
which is referred to in section 3.07(d). The Texas
Veterinary Medical Diagnostic Laboratory was created by
article 746533, which provides:
Sec. 1. There is hereby created an agency of
the State of Texas to be known as the Texas
Veterinary Medical Diagnostic Laboratory. It
shall not be a part of The Texas A & M
University System but it shall be under the
jurisdiction and supervision of the Board of
Regents of The Texas A & M University System.
The said Board of Regents shall staff the
agency with an executive director and such
other employees necessary for the proper
functioning thereof, and such executive
(Footnote Continued)
p. 4460
Honorable Bob Bullock - Page 8 (x9-903)
animals." A state agency has only those powers expressly
granted to it by the legislature or necessarily implied.
Railroad Commission v. Atchison. Toveka & Santa Fe Railwav
co., 609 S.W.2d 641, 643 (Tex. Civ. App. - Austin 1980,
writ ref'd n.r.e.). The Racing Commission has authority to
order drug testing and to approve the laboratories that
perform such drug testing. The commission does not, how-
ever, have authority under the applicable statutes to set up
a laboratory itself or to contract with the Texas Veterinary
Medical Diagnostic Laboratory or any other entity for the
purpose of setting up a laboratory. Also, a rider to the
current appropriations act provides:
APPROPRIATION TRANSFERS. a. None of the
money appropriated by this Act may be
transferred from one agency or department to
another agency or department, or from one
appropriations item or program to another
appropriation item or program, unless such
transfer is specifically authorized by this
Act.
General Appropriations Act, Acts 1987, 70th Leg., 2d C.S.,
ch. 78, art. V, .561, at 1123. See also Ia. art. III, at
954 (appropriation to the Texas Veterinary Medical
Diagnostic Laboratory of money to be used "for establishing
a drug testing program for race horses and dogs").
Therefore, the commission may not loan or otherwise transfer
money to the Texas Veterinary Medical Diagnostic Laboratory
to set up a laboratory for drug testing.
You also ask whether the Racing Commission and the
Texas Veterinary Medical Diagnostic Laboratory may enter
into an interagency contract to help the Texas Veterinary
Medical Diagnostic Laboratory establish a laboratory. The
Interagency Cooperation Act, article 4413(32), V.T.C.S.,
does not enlarge the authority of state agencies. V.T.C.S.
art. 4413(32), 55. Because the Racing Commission has no
authority to establish a laboratory for drug testing, it may
(Footnote Continued)
director and employees shall be eligible to
participate in the same retirement systems
and personnel benefits available to employees
of The Texas A 8 M University System.
V.T.C.S. art. 7465b, 51.
p. 4461
Honorable Bob Bullock - Page 9 (a-l-903)
not contract with Texas Veterinary Medical Diagnostic
Laboratory to establish a laboratory for drug testing.
-
Your last question is whether drug testing must be
performed by the Texas Veterinary Medical Diagnostic
Laboratory if "cheaper and equally effective drug testing of
animals is available."3 The Racing Act expressly provides
that drug testing shall be conducted either by the Texas
Veterinary Medical Diagnostic Laboratory 810r in conjunction
with or by a private or public agency that is approved by
the commission and by the Texas Veterinary Medical
Diagnostic Laboratory and that is accredited by the American
Association of Laboratory Diagnosticians." V.T.C.S. art.
179e, 53.07(d). Therefore, the Racing Commission may
approve any accredited laboratory to perform drug testing as
long as the Texas Veterinary Medical Diagnostic Laboratory
also approves. The Texas Veterinary Medical Diagnostic
Laboratory may not unreasonably withhold its approval. See
Allstate Insurance co. v. State Board of Insurance, 401
S.W.2d 131, 132 (Tex. Civ. App. - Austin 1966, writ ref'd
n.r.e.).
SUMMARY
The comptroller's chief clerk may perform
the comptroller's duties as ex officio member
of the Racing Commission if the comptroller
is unavoidably absent or otherwise unable to
discharge those duties. In such a situation
the chief clerk may vote and should be
counted in determining whether a quorum is
present. Members of the Racing Commission
may not delegate their duties as members of
the commission. The chief clerk is
authorized to act in the comptroller's
absence by virtue of statutory authority, not
by virtue of delegation.
3. The act does not anticipate that there will be
P only one approved laboratory. Nothing in section 3.07(d)
would prevent the commission from approving more than one
laboratory. Also, the commission must approve the
reasonableness of the charges made by any approved
laboratory.
p. 4462
Honorable Bob Bullock - Page 10 (JM-903)
The Racing Commission has no authority to
spend money to develop a laboratory to
perform drug testing, and the commission has
no authority to contract with the Texas
Veterinary Medical Diagnostic Laboratory to
develop a laboratory to perform drug testing.
The commission may approve an accredited
laboratory other than the Texas Veterinary
Medical Diagnostic Laboratory to perform drug
testing, but the Texas Veterinary Medical
Diagnostic Laboratory must also approve the
laboratory.
,;jgy&
MATTOX
Attorney General of Texas
MARYKELLER
First Assistant Attorney General
LOU MCCREARY
Executive Assistant Attorney General
JUDGE EOLLIE STEAKLEY
Special Assistant Attorney General
RICK GILPIN
Chairman, opinion Committee
Prepared by Sarah Woelk
Assistant Attorney General