Untitled Texas Attorney General Opinion ( 1989 )

September 25, 1989
Mr. Hilary B. Doran, Jr. Opinion No. JM-1102
Chairman
Texas Racing Commission Re: Whether the Texas Racing
P. 0. Box 12080 Commission may adopt rules
Austin, Texas 78711 regarding the regulating of
simulcasting (RQ-1645)
Dear Mr. Doran:
Article 179e, V.T.C.S., the Texas Racing Act, created
the Texas Racing Commission [hereinafter the commission],
j& at 9 2.01, and conferred on it broad rulemaking
authority governing horse racing and greyhound racing.l You
ask about the scope of that authority, specifically whether
the commission may promulgate rules regulating "simul-
casting" of race events.
YOU inform us that "simulcasting" is the transmission,
by electronic means, of a race track event that is conducted
at one racetrack and displayed at-another location, in this
instance, another licensed racetrack. Under such a system,
1. Section 3.02 of the act confers broad authority
regarding regulation and supervision of races involving
wagering and provides:
In accordance with section 3.01 of this
Act, the commission shall regulate and super-
vise every race meeting involving wagering on
the result of greyhound or horse racing. All
persons and thinas relatina to the oneration
of those meetincs are subject to reaulation
and suvervision. The commission shall adopt
rules for conducting racing involving wager-
ing and shall adopt other rules to administer
this Act that are consistent with this Act.
(Emphasis added.)
In addition, the act explicitly confers rulemaking authority
on the commission in over twenty specific instances.
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Mr. Hilary B. Doran, Jr. - Page 2 (JR-1102)
pari-mutuel wagering is conducted at both locations, with
the state's portion of the pari-mutuel pool at each location
being taken and remitted to the state, as required by the
act. You do not ask about any specific rules: rather, YOU
ask about the commission's general authority.
You ask:
Does the Texas Racing Act prohibit the Texas
Racing Commission from adopting rules
regarding the regulation of simulcasting?2
We conclude that article 179e, V.T.C.S., the Texas Racing
Act, does not confer any authority on the Texas Racing
Commission to promulgate rules regarding the regulation of
simulcasting. We so conclude, because we construe the act
to prohibit wagering on simulcast events.
Administrative agencies have only those powers that
expressly are conferred by statute, Cobra Oil & Gas Corv. v.
Sadler, 447 S.W.2d 887 (Tex. l-968), together with those
necessarily implied from powers and duties expressly given
or imposed. Stauffer v. Citv of San Antonio, 344 S.W.2d 158
(Tex. 1961). The threshold issue is whether the act permits
wagering at licensed racetracks on simulcast events. If it
does, then the commission has general authority to promul-
gate rules regulating such events. If the act does not
permit wagering on such- events, the commission has no such
authority.
The act is detailed, expressly conferring comprehensive
regulatory authority on the commission. If the legislature
had intended that wagering on simulcast be permitted, one
reasonably would expect the act to confer such regulatory
authority expressly: yet the act does not confer express
2. You do not specify in your request whether you are
concerned about the commission's authority regarding purely
intrastate simulcasts or interstate simulcasts or situations
in which an association is the host of a simulcast or an
exhibitor of a simulcast. We note that section.3001 through
3007 of title 15 of the United States Code, the Interstate
Horseracing Act of 1978 (P.L. 95-515), prohibits off-track
pari-mutuel wagers being placed or accepted in one state
with respect to the outcome of a horse race taking place in
another state unless consent is obtained from (the host
racing association), (the host racing commission,) and the
off-track racing commission.
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Mr. Hilary B. Doran, Jr. - Page 3 (JM-1102)
authority on the commission to regulate simulcasting.
Indeed, nowhere in the act is "simulcasting@' or any
synonymous term or phrase even mentioned. You do not assert
that the Texas Racing Act expressly permits wagering on
simulcast events, but you do advance two arguments in
support of the proposition that the legislature impliedly
intended to permit such wagering. We find neither of your
arguments persuasive.
First, you rely upon the language of sections 11.01 and
11.04 of the act. Section 11.01 confers explicit rulemaking
authority on the commission regarding pari-mutuel wagering
and provides in pertinent part:
The commission shall adopt rules to
regulate wagering on greyhound races and
horse races under the system known
pari-mutuel wagering.3 waserina
conducted onlv v an a ociation wit% its
enclosure. (Emihasis azied.)
Section 11.04 of the act governs wagering and provides:
(a) Onlv a nerson inside the enclosure
where a race meetina is authorized mav wacaer
on the result of a race vresented bv the
association bv contributino monev to the
pari-mutuel ~001 overated bv the association.
The commission shall adopt rules to prohibit
wagering by employees of the commission and
to regulate wagering by persons licensed
under this Act.
3. Subsection 1.03(18) of the act provides:
'Pari-mutuel wagering' means the form of
wagering on the outcome of greyhound or horse
racing in which those who wager purchase
tickets of various denominations on an animal
or animals and all wagers for each race are
pooled and held by the racing association for
distribution of the total amount, less the
deductions authorized by this Act, to holders
of tickets on the winning animals.
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Mr. Hilary B. Doran, Jr. - Page 4 (JM-1102)
(b) The commission shall adopt rules
prohibiting an association from accepting
wagers by telephone.
(c) The commission shall adopt rules
prohibiting an association from accepting a
wager made on credit and shall adopt rules
prohibiting automatic banking machines within
the enclosure. (Emphasis added.)
But see V.T.C.S. art. 179e, 5 3.02 (commission shall adopt
rules for conducting racing involving wagering).
Your argument focuses on the use of the word l'presented"
in section 11.04(a), contrasting that with the use of the
word "conductedtq in section 11.01.4 You assert:
Some members of the commission believe this
section [section 11.01 of the act] also
authorizes the commission to adopt rules
regulating wagering on simulcast races,
including regulations regarding the race-
tracks from which a simulcast is broadcast,
the racetracks at which a simulcast will be
presented, and the type of equipment that
will transmit the simulcast electronic sig-
nals.
Section 11.04(a) offers additional support
for this belief. In that subsection, wager-
ing is restricted to races that are presented
by an association. Several places in the Act
refer to an association that conducts races.
[Citations omitted.] Under the 'plain mean-
ing' rule of statutory construction, we must
assume that the use of two different terms
indicates a difference in meaning is in-
tended. [Citation omitted.] Use of the word
'presented' indicates that the legislature
intended a different meaning from what the
4. When the bill reached the floor of the Senate, the
sentence of section 11.01 that is underscored above read:
"Wagering may be conducted only by an association within its
enclosure durino a race meeting." The underscored phrase
was deleted by floor amendment and the phrase "presented by
the association" was inserted after the word race in sub-
section 11.04(a).
p. 5777
Mr. Hilary B. Doran, Jr. - Page 5 (JM-1102)
word 'conducted' would have conveyed. This
section [subsection 11.04(a)] indicates that
the legislature contemplated that races could
be presented by an association for pari-
mutuel wagering without being conducted by
that particular association. Obviously,
Section 11.04(a) permits only an association
that is licensed to conduct race meetings at
some time to present, for wagering purposes,
races that are conducted elsewhere.
Although the Act does not explicitly mention
simulcasting, the plain language of the
statute indicates that simulcasting is
authorized by the Act and that the Commission
is authorized to adopt rules to regulate
simulcasting. (Emphasis in original.)
It is generally presumed that every word in a statute
is used for a purpose. Cameron v. Terre11 & Garrett. Inc.,
618 S.W.Zd 535 (Tex. 1981). But, in construing a statute,
we must look to the intent of the legislature and must
construe the statute as a whole so as to qive effect to that
intent. pnicht v. International Harvester Credit Corn., 627
S.W.2d 382 (Tex. 1982).
The fundamental rule controlling the con-
struction of a statute is to ascertain, if
possible, the intention of the Legislature as
expressed in the language of that statute.
[Citation omitted.] ln ascertainins this
intent. courts must examine the entire
statute or act and not merelv isolated
portion thereof. [Citation omitte?] Further,
if the intent of the Legislature is ascer-
tained, courts must enforce that intent even
though the intent is not altogether consis-
tent with the strict letter of the statute.
[Citation omitted.] (Emphasis added.)
State v. Terrell, 588 S.W.2d 784, 786 (Tex. 1979).
The word "present" is defined by Webster's New World
Dictionary of the American Language to mean, inter alia, "to
offer for viewing or notice: exhibit; display; show." The
same dictionary defines "conduct" to mean, inter alia, "to
manage, control, or direct." While there is a dictionary
distinction between the meanings of the two words, there is
no meaningful distinction between the two words when the act
is read as a whole. Your argument is not persuasive,
because, throughout the act, the words "present," "hold,"
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Mr. Hilary B. Doran, Jr. - Page 6 (JM-1102)
"conduct,l* and %=un" are used interchangeably. See, e.cr
55 9.03 ('IAnassociation shall provide for the runn' q 0;
races . . ."); 9.05 ("When a horse racing associatiok m
both quarter horse and Thoroughbred races . . ."); 9.06 ("If
a horse racing association conducts quarter horse and
Thoroughbred racing . . ."'); 10.02 ("If . . . it is impos-
sible for the licensee to w ordconducz a race . . .");
11.01 ("Wagering may be cond cte . . . 1: 11.04 ("Only
a person inside the enclosureU where a race meeting is
authorized may wager on the result of a race presented by
the association. . . .'I). (Emphasis added.)
Section 3.02 of the act requires the commission to
"regulate and supervise every race meetinq involving
wagering on the result of greyhound or horse racing."
(Emphasis added.)5 Subsection l-03(6) of the act provides:
'Horse race meeting' means the conductinq
of horse races on a day or during a period of
,consecutive or nonconsecutive days. (Emphasis
added.)
Subsection 1.03(50) of the act provides in pertinent part:
'Greyhound racing days' means days on
which a permitted association conducts
greyhound racing. (Emphasis added.)
Subsection 1.03(2) of the act provides:
'Association' means a person licensed
under this Act to conduct a horse race
5. We note that article 179e-4, V.T.C.S., provides:
Any provision in this Act to the contrary
notwithstanding, the Texas Racing Commission
shall regulate all aspects of greyhound
racing and horse racing in this state,
whether or not that racing involves pari-
mutuel wagering.
We understand you to ask about the simulcasting of race
events conducted by associations engaged in pari-mutuel
wagering. Therefore we do not address the scope or nature
of the authority conferred by article 179e-4, V.T.C.S. See
Attorney General Opinion JM-971 (1988).
P. 5779
Mr. Hilary B. Doran, Jr. - Page 7 (JM-1102)
meeting or a greyhound race meeting with
pari-mutuel racing. (Emphasis added.)
Section 6.14 of the act provides that an "association may
not conduct greyhound or horse racing" at any place other
than the place designated in its license, except as provided
in the act. Section 6.15 of the act permits, under certain
circumstances, an "association to conduct races" at a
temporary location.
Thus, even if we assumed arcuendo that there were a
meaningful distinction in the act between the words
"conduct" and "present," we construe the act to permit
associations to present only those race meetings involving
pari-mutuel wagering that are themselves conducted by that
association, i.e. those race meetings that an association
itself manages, controls, or directs. Our construction of
the act is strengthened by the fact that sections 6.08 and
6.09 of the act fail to address the allocation of shares and
breakage and the disposition of pari-mutuel pools in an
instance in which a simulcast event is presented. It would
be anomalous for the legislature to intend that associations
be permitted to engage in wagering on simulcast events
without, at the same time, providing a means whereby the
pari-mutuel pools created by such wagering be allocated.6
Second, you rely on the legislative history of the act
to support your construction. You place significance on the
fact that the senate rejected a floor amendment to the act
that expressly would have prohibited wagering on simulcast
events. The amendment would have added section 11.10 to the
act, which provided as follows:
Sec. 11.10. SIMULCAST PROHIBITION. The
Commission shall adopt rules forbidding the
simulcasting of any race taking place in this
state to any other track in this state or any
other state. The Commission shall also adont
rules vrohibitina vari-mutuel waaerina on
6. Our construction of the act is in accord with those
state authorities that have addressed the same issue, con-
struing language that is substantively identical with that
in the Texas act. See Advanced Deliverv Serv.. Inc. v.
Gates, 228 Cal Rptr. 557 (Cal. Ct. App. 1986); Atlantic Citv
Racins Ass'n v. Attornev General, 489 A.2d 165 (1985): 66
OP. Cal. Att'y Gen. 225, 66 Op. Cal. Att'y Gen. 94 (1983);
op. KY. Attly Gen. No. 82-4 (1982).
P. 5780
Mr. Hilary B. Doran, Jr. - Page 8 (JM-1102)
or horse aces which are broad-
Although Texas courts have held that the deletion of a
provision in a pending bill discloses a legislative intent
to reject the proposal, Smith v. Baldwb 611 S.W.2d 611
(Tex. 1980); Transvortation Qua. Co. v. Maicsvn 580 S.W.2d
334 (Tex. 1979): 5
81 S.W.2d 482 (Tex. 1935), that is nzt" a rule that i;
uniformly followed in every case:
The rejection of a proposed amendment to a
statute may constitute some argument for
legislative interpretation of the act amended
or sought to be amended. To such extent it
can be considered by the courts in inter-
preting the act. However, the rejection of
an amendment as such does not control the
construction of the statute. 82 C.J.S.
Statutes 5 360.
There are decisions holding that in con-
struing a statute, rejected amendments, or
rejected alternative legislation, should not
be considered, or at least should be given
little weight, since the courts can have no
means of knowing the real reasons that in-
fluenced the legislature in such rejection.
In any event, the rejection of an amendment,
or the elimination of words from a bill
before its passage, is not conclusive of the
bill's inapplicability to the matters
included in such amendment or described
by such words. a 73 Am. Jur.2d Statutes
S 172.
Citv of Inaleside v. Johnson, 537 S.W.2d 145, 153 (Tex. Civ.
APP . - Corpus Christi 1976, no writ).
7. We note that the underscored language of the tabled
amendment, on its face, would have authorized the commission
to regulate, not just the simulcasts of races conducted in
other states, but the actual races themselves. It reason-
able to assume that the senate tabled the amendment in the
belief that such a provision would violate both the
Interstate Horseracing Act of 1978 and the interstate
commerce clause of the United States Constitution.
P. 5781
c
Mr. Hilary B. Doran, Jr. - Page 9 (JM-1102)
The Texas cases that have addressed whether the dele-
tion of a provision in a pending bill discloses legislative
intent are easily distinguishable from the instant fact
situation. Those cases involved the deletion, either in
conference committee or during the floor debate in one
house, of provisions that were set forth in the original
bills, as introduced. Here the amendment offered would have
constituted an addition to the original bill, not a deletion
of one of its original provisions. None of the cases cited
above involved the tabling of a floor amendment in one house
of a provision that was not contained in an original bill.
Under your argument, the fact that the senate rejected
the floor amendment would authorize not only the commission
to promulgate rules regulating simulcasting, but it would
also authorize the commission to promulgate rules regulating
off-track wagering. Surely the legislature did not intend
that such an important public policy matter as the
authorization of simulcasting or of off-track wagering be
left to the discretion of the commission, especially when no
other provision of the act supports such a construction. In
this instance, it is reasonable to assume that the senate
tabled the floor amendment for the reason that it would be
useless for the legislature to forbid something not
authorized by the act in the first place.
We need not determine, however, the significance, if
any, of the senate's tabling of the floor amendment to
the act that expressly would have prohibited wagering on
simulcast events. While the Code Construction Act, which
governs the construction of each code enacted by the 60th or
any subsequent legislature, appears to permit consideration
of legislative history regardless of whether a code provi-
sion is thought to be ambiguous,8 that act does not control
the construction of civil statutes. Where there is no ambi-
guity and the intent of the legislature is apparent from the
8. Chapter 311 of the Government Code, the Code Con-
struction Act, conta.ins section 311.023, which provides in
pertinent part:
In construing a statute, whether or not
the statute is considered ambiauous on its
face, a court may consider among other
matters the:
(3) legislative history. (Emphasis added.)
Pa 5782
Mr. Hilary B. Doran, Jr. - Page 10 (JM-1102)
words of the statute, it is not necessary to analyze
extrinsic evidence of legislative intent. Minton v. Frank,
545 S.W.2d 442 (Tex. 1976). The Texas Racing Act is not
ambiguous on this issue and its intent is clear. In any
event, the rejection of such an amendment is not tantamount
to an affirmative grant of authority, permitting either the
simulcasting of race meetings or off-track wagering.
An agency may not exercise authority that exceeds the
clear intent of the legislature, Gulf Coast Water Co. v.
Cartwrig& 160 S.W.2d 269 (Tex. Civ. App. - Galveston 1942,
writ ref'd'w.o.m.), nor may it enlarge its powers by its own
orders. Railroad Comm n Fort Worth & D C. Rv co., 161
S.W.2d 560 (Tex. Civ: - Austin i942, writ
. ref'd
w.0.m.). Accordingly, we- conclude that article 179e,
V.T.C.S., the Texas Racing Act, confers no authority on the
Texas Racing Commission to promulgate rules regulating the
simulcasting of race events, because the act itself does not
permit wagering on such events.
SUMMARY
Because article 179e, V.T.C.S., the Texas
Racing Act, does not itself authorize an
association to engage in pari-mutuel wagering
on simulcast events, the Texas Racing Commis-
sion is without authority to promulgate rules
regulating simulcast events.
, vewjru
JIM MATTOX
Attorney General of Texas
MARY KELLER
First Assistant Attorney General
LOU MCCREARY
Executive,Assistant Attorney General
JUDGE ZOLLIE STEAKLEY
Special Assistant Attorney General
RICK GILPIN
Chairman, Opinion Committee
Prepared by Jim Moellinger
Assistant Attorney General
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