Untitled Texas Attorney General Opinion ( 2011 )

ATTORNEY GENERAL OF TEXAS
GREG ABBOTT
August I, 2011
Mr. Rolando B. Pablos, Chair Opinion No. GA-0867
Texas Racing Commission
Post Office Box 12080 Re: Constitutionality of section 6.06(d) of article 17ge
Austin, Texas 78711-2080 of the Texas Racing Act, which imposes racetrack
licensing residency requirements (RQ-0936-GA)
Dear Mr. Pablos:
You ask "whether Section 6.06(d) of the Texas Racing Act ... is constitutional under the
Interstate Commerce Clause ofthe United States Constitution."!
Section 6.06(d) provides that the "majority ownership of a partnership, firm, or association
applying for or holding a [racetrack] license must be held by citizens who meet the residency
qualifications enumerated in this section for individual applicants." TEX. REV. CN. STAT. ANN. art.
17ge, § 6.06(d) (West 2010). See also id. § 1.01 (indicating that article 17ge is the Texas Racing
Act). Those qualifications provide that the Texas Racing Commission ("TRC") may refuse to issue
a license if "the applicant has not been a United States citizen residing in this state for the period of
10 consecutive years immediately preceding the filing of the application." [d. § 6.06(a)(12).
The Commerce Clause of the United States Constitution provides, "The Congress shall have
Power ... To regulate Commerce with foreign Nations, and among the several States, and with the
Indian Tribes[.]" U.S. CONST. art. I, § 8, cl. 3. See also Hughes v. Oklahoma, 441 U.S. 322, 323
(1979) (identifying article I, section 8, clause 3 as the Commerce Clause). The United States
Supreme Court's general rule in evaluating whether a state law violates the Commerce Clause is to
inquire (1) whether the challenged statute regulates evenhandedly
with only "incidental" effects on interstate commerce, or
discriminates against interstate commerce either on its face or in
practical effect; (2) whether the statute serves a legitimate local
purpose; and, if so, (3) whether alternative means could promote this
local purpose as well without discriminating against interstate
commerce.
lLetter from Mr. Rolando B. Pablos, Chair, Texas Racing Commission, to Honorable Greg Abbott, Attorney
General of Texas at 1 (Dec. 20, 2010), https:llwww.oag.state.tx.us/opinlindex_rq.shtml ("Request Letter").
Mr. Rolando B. Pablos - Page 2 (GA-0867)
Hughes, 441 U.S. at 336 (citation omitted). The second and third Hughes inquiries involve mixed
questions oflaw and fact. Attorney general opinions do not answer fact questions. Tex. Att'y Gen.
Op. No. GA-0643 (2008) at 7 n.4.' Because we cannot perform the fact-based analysis that a court
would conduct in considering the constitutionality of section 6.06( d), we cannot conclude how a
court would resolve constitutional questions involving section 6.06(d).3
'Although the Legislature requires the TRC to adopt rules relating to license applications "[tlo preserve and
protect the public health, welfare, and safety[,]" it does not explain why it included citizenship requirements in section
6.06(d). TEx. REv. ClY. STAT. ANN: art. 17ge, § 6.06(a), (d) (West 2010).
3rf we answered the fact questions necessary to perform the Hughes test, which we cannot do, and if we issued
an opinion concluding that section 6.06 is unconstitutional, which we are not doing, our opinion would not empower the
TRC to disobey section 6.06. See Sexton v. Mount Olivet Cemetary Ass 'n, 720 S.W.2d 129, 137-38 (Tex. App.-Austin
1986, writ ref'd n.r.e.) (explaining that a state agency has no power other than one expressly granted by statute or implied
as necessary to exercise a power expressly granted); Pierce v. Tex. Racing Comm'n, 212 S.W.3d 745, 751-52 (Tex.
App.-Austin 2006, pet. denied) (indicating that the TRC is a state agency). See also Holmes v. Morales, 924 S.W.2d
920,924 (Tex. 1996) (explaining that attorney general opinions are persuasive but not binding).
Mr. Rolando B. Pablos - Page 3 (GA-0867)
SUMMARY
The United States Supreme Court's test for determining
whether a state statute violates the Commerce Clause of the United
States Constitution involves mixed questions of law and fact.
Because this office cannot answer questions of fact, we cannot
perform the legal analysis necessary to determine how a court would
resolve constitutional questions involving section 6.06( d) of the
Texas Racing Act.
Very truly yours,
Attorney General of Texas
DANIEL T. HODGE
First Assistant Attorney General
DAVID J. SCHENCK
Deputy Attorney General for Legal Counsel
JASON BOATRIGHT
Chair, Opinion Committee
Jason Boatright
Assistant Attorney General, Opinion Committee