ATTORNEY GENERAL OF TEXAS 

GREG ABBOTT 

Mr. Rolando B. Pablos, Chair 

Texas Racing Commission 

Post Office Box 12080 

Austin, Texas 78711-2080 

Dear Mr. Pablos: 

August I, 2011 

Opinion No. GA-0867 

Re: Constitutionality of section 6.06(d) of article 17ge 

of the Texas Racing Act, which imposes racetrack 

licensing residency requirements (RQ-0936-GA) 

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. 

DANIEL T. HODGE 

First Assistant Attorney General 

DAVID J. SCHENCK 

Deputy Attorney General for Legal Counsel 

JASON BOATRIGHT 

Chair, Opinion Committee 

Jason Boatright 

Very truly yours, 

Attorney General of Texas 

Assistant Attorney General, Opinion Committee