THE ATTORRNEY GENERAL OF TEXAS

May13,1988

Honorable Bob Bullock Comptroller of Public Accounts L.B.J. State Cffice Building Austfn, Texas 78774 Opinion No. JM-903

Re: Al+.horityofRacing Commissionmembers ?:odelegate duties, and authority ofRacing Cammission to contract with Te>.as Veterinary Medical Diagnostic Laboratory (RQ-1390)

DearMr. 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 todelegate their duties.

The Racing Act,V.T.C.S. art. 175e, s2.02, provides thatthe 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 todelegate their duty to sit
on the commission:

(a)May the Chief Clerk of theComptroller of Public Accounts sit in the Comptroller's absence asavoting member of the Commission?

**--**
**P** 1. Two of your questions aregoverned by the Open

?.feetings

Act, article 6252-17, V.T.C.S., **and** one isgoverned by the Texas Open Records Act, article 6252-17a, V.T.C.S. Those questions will be answered by separate letter.

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(b)Ifhe does so, should hebe counted in determining whether aquorum ispresent at Commission meetings?

(c) May other Commission members send substitutes to act forthem in Commission meetings that they areunable to attend?

(a)If (~1 isanswered "yes,It should the substitutes forthe other members be counted indetermining whether there is a quorum present atCommission 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 notvote?

Your first question iswhether the comptroller's chief clerk may sit asavoting member of the commission. Section 403.003 of the Government Codeprovides:

(a)The comptroller shall appoint a chief clerk who shall:

(1)perform theduties of the comptrollerwhen the comptroller is unavoidably absent or is incapable of discharging those duties;

(2)act as comptroller ifthe 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 andgive bond inthe amount of $10,000, payable in the same manner as the comptroller's bond, and conditioned on the faithful performance of theduties of the office.

p. 4455Honorable Bob Bullock -Page 3 (JM-903)

P
Thus, when the comptroller isunavoidably absent or is

incapable ofperforming the duties ofhis office, his chief

- clerk isauthorized toperform those duties. Your question,

then, iswhether the comptroller's responsibility to sit as amember of theRacing Commission constitutes a "duty of office.*'

InPfeffer 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 amember 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 inproviding fora chief clerk for each. The offices of chief clerk foreach is thus created by statute. It is likewise observed that the statutes provide that, in the absence of the secretary of state, orhis inability to act fromany 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 hemay be unavoidably absent or incapable from sickness, or other causes, to discharge. saidduties.

The service of the secretary of state and the comptroller on theboard of education is the performance by each of aduty attached by the statute to the office held by each. The duties are not personal. They are duties attached to the offices. Anyholder 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 byvirtue of the statutes making

p.4456Honorable Bob Bullock -Page 4 (JM-903)

them members of the board of education. Z&l such cases the chief clerks donot nerform those duties bydeleaation of authoritv from their chiefs. Thev oerform thembvvirtue of authoritv of the Leaislature inthe same wav that their chiefs are authorized to perform them -- The Legislature could have provided that, inthe absence, etc., of the secretary of state and comptroller, the chief clerks of either or each should bemembers of the board of education. The Legislature has done the
same thing inadifferent 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 theduties of those officers, among which areduties 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 theRacing Commission is attached tohis office rather than to himpersonally, it follows from the court#s decision inPfeffer v. Mahnke, sunra, that the comptroller's chief clerk isauthorized to perform the comptroller's duty to sit as an ex officio member of the Racing Commission when the comptroller is unavoi.dablyabsent or isotherwise unable to act. It also follows thatwhen the chief clerk takes the place of the comptroller as a member of theRacing Commission, he may vote and should be counted indetermining whether a quorum ispresent.

YOU also ask whether othermembers of the commission may send substitutes to act forthem. It iswell established that, inthe absence of express statutory authority,
apublic official may notdelegate non-ministerial duties. M&dy v. Texas Water-Commission, 373S.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 notbe 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 isauthorized to sit as a member of the commission inthe comptroller's absence byvirtue of statutory authority, not byvirtue of adelegation. Pfeffer

v. Mahnke, 260 S.W. at 1034.

p.4457Honorable Bob Bullock -Page 5 (JM-903)

YOU also ask whether the commission may allow substitutes forothermembers to sit for the absent members and speak but notvote. Inthe absence of express statutory authority, a commission member may notdelegate his responsibility todeliberate atmeetings. The commission may not authorize such delegation by rule. See aenerallv H-188 (1973); see alsoWebster v. Texas &Pacific Motor TransDOrt co., 166S.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.

Ifnot,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 fordrugs?

Whether the Commission isrequired to use Texas A&M for drug testing of animals if cheaper and equally effective drug testing of animals isavailable through other sources.

Section 14.03 of theRacing Act provides, inpart:

(a) The commission shall adopt rules prohibiting the illegal influencing of the outcome of arace, including but not limited to the use of medication, stimulants, or depressants to attempt to or to influence illegally the outcome ofa 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 adrug, 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 tobe 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.4458Honorable Bob Bullock -Page 6 (JM-903)

administered or applied the drug, chemical,
or other substance orany electric device or spurmay be immediately suspended pending hearing by the stewards or judges with the right ofappeal to the commission. Such a suspension may be stayed, inthe discretion of the commission only, during the pendency of such appeal. The commission shall require that allurine samples be frozen and maintained for aperiod of oneyear inorder to enable veterinarians and chemists to conduct follow-up tests to detect and identify prohibited drugs. All other specimens shall bemaintained for testing purposes in the
manner prescribed by the commission. Such a testmay alsobe required by the owner or trainer ofan animal orby the association at whose racetrack the animal is entered in a racemeeting.

V.T.C.S. art. 179e, 514.03(a), (b). Subsections (d)and (e) of section 3.07 of the actprovide:

(d) Medication ordrua 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 isavvroved bv the commission and bv the TexasVeterinary Medical Diaanostic Laboratorv and that is accredited bv the American Association ofVeterinarv 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 foravvroval as to reasonableness of the charues forthe 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 thisAct 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.4459Honorable Bob Bullock -Page 7 (JM-903)

this section and Section 14.03 of this Act must be licensed under Article 7of this Act. Aperson conducting tests under this section is a state veterinarian for purposes of Subsection (a)of this section.

(e) To pay the charges associated with themedication or drug testing, an association may use the money retained by the association on tickets that arepurchased as wagers on winning horses orgreyhounds and that are not cashed by the holders of the tickets. Ifadditional amounts areneeded to pay a-3 charges, the association shall pay those additional amounts. If the amount retained exceeds the amount needed topay the charges, the association shallpay the excess to the comptroller fordeposit inthe manner provided by Section 3.09 of this Act. (Emphasis added.)

V.T.C.S. art. 179e, §3.07(d), (e).

You askwhether the commission isauthorized 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 ishereby created an agency of the State ofTexas to beknown as the Texas Veterinary Medical Diagnostic Laboratory. It shall not be apart of The Texas A & M University System but it shall beunder the jurisdiction and supervision of the Board of Regents ofThe Texas A &MUniversity 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)

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animals." A state agency has only those powers expressly granted to itby the legislature ornecessarily 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 setup 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 ofmoney tobeused "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 setup a laboratory fordrug testing.

Diagnostic Laboratory or any other of setting up entity for the

a laboratory. Also, a rider to the appropriations actprovides:

APPROPRIATION TRANSFERS. a. None of the money appropriated by this Act may be transferred from one agency ordepartment to another agency or department, or from one appropriations item or program to another appropriation item orprogram, unless such transfer is specifically authorized by this Act.

You also askwhether the Racing Commission and the Texas Veterinary Medical Diagnostic Laboratory may enter intoan interagency contract tohelp theTexas 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 theRacing Commission has no authority to establish a laboratory fordrug testing, itmay

(Footnote Continued)

director and employees shall be eligible to participate in the same retirement systems andpersonnel benefits available to employees ofThe Texas A 8MUniversity System.

V.T.C.S. art. 7465b, 51.

p.4461Honorable Bob Bullock -Page 9 (a-l-903)

not contract with Texas Veterinary Medical Diagnostic Laboratory to establish a laboratory fordrug 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 isavailable."3 The Racing Act expressly provides that drug testing shallbe conducted either by the Texas Veterinary Medical Diagnostic Laboratory 810rin conjunction with orby a private orpublic agency that isapproved by the commission and by the Texas Veterinary Medical Diagnostic Laboratory and that isaccredited 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 toperform drug testing as long as theTexas Veterinary Medical Diagnostic Laboratory also approves. The Texas Veterinary Medical Diagnostic Laboratory may notunreasonably withhold itsapproval. 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 clerkmay perform the comptroller's duties as exofficio member of the Racing Commission ifthe comptroller isunavoidably absent orotherwise unable to discharge those duties. In such a situation the chief clerk may vote and should be counted in determining whether aquorum is present. Members of the Racing Commission may notdelegate their duties asmembers of the commission. The chief clerk is authorized to act in the comptroller's absence byvirtue of statutory authority, not byvirtue ofdelegation.

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.4462Honorable 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 toperform drug testing. The commission may approve an accredited laboratory other than the Texas Veterinary Medical Diagnostic Laboratory toperform drug testing, but the Texas Veterinary Medical Diagnostic Laboratory must also approve the laboratory. 

# ,;jgy&

MATTOX Attorney General ofTexas

MARYKELLER FirstAssistant 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