THE ATTORRNEY GENERAL 

OF TEXAS 

May 13, 1988 

Honorable Bob Bullock 

Comptroller of Public 

Accounts 

L.B.J. State Cffice 

Building 

Austfn, Texas 78774 

Opinion No. JM-903 

Re: Al+.hority of Racing Commission members ?:o delegate duties, 

and authority of Racing Cammission 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 

?.feetings Act, 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 comptroller 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: 

/4 

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 

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 membership on the state board of education. 

(Emphasis added.) 

260 S.W. at 1033-34. Because the comptroller's responsibility 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 established 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 responsibility 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 maintained 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 association 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 

Laboratory2 

Diagnostic 

"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, however, have authority under the applicable statutes to set up 

a laboratory itself or to contract with the Texas Veterinary 

Medical 

purpose 

current 

General Appropriations Act, Acts 1987, 70th Leg., 2d C.S., 

art. V, 561, at 1123. See also Ia. art. III, at . 

ch. 78, 

954 (appropriation to the Texas Veterinary Medical 

Diagnostic Laboratory of money to be used "for 

a drug testing program 

establishing 

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. 

Diagnostic Laboratory or any other 

of setting up 

entity for the 

a laboratory. Also, a rider to the 

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. 

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