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: Constitutionalityofsection 6.06(d) ofarticle 17ge of the Texas Racing Act, which imposes racetrack licensing residency requirements (RQ-0936-GA)

You ask "whether Section 6.06(d) ofthe Texas Racing Act
... is constitutional under the Interstate Commerce Clause ofthe United States Constitution."! Section 6.06(d) provides that the "majority ownership ofa partnership, firm, or association applying for or holding a [racetrack] license must be held by citizens who meet the residency qualifications enumeratedinthis sectionfor 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 qualificationsprovidethat theTexasRacing Commission ("TRC") mayrefuseto issue a license if"the applicant has notbeen a United States citizen residing in this state for the period of 10 consecutive years immediately preceding the filing ofthe application." [d. § 6.06(a)(12). TheCommerceClauseofthe United States Constitutionprovides, "TheCongress shallhave 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, ifso, (3) whether alternative means couldpromotethis 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 ofTexas at 1 (Dec. 20, 2010), https:llwww.oag.state.tx.us/opinlindex_rq.shtml ("Request Letter").Mr. Rolando B. Pablos

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Hughes, 441 U.S. at 336 (citation omitted). The second and thirdHughes inquiries involve mixed questions oflaw andfact. Attorney general opinions do not answerfact questions. Tex. Att'y Gen. Op. No. GA-0643 (2008) at 7 n.4.' Because we cannotperform 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 adoptrules relating to license applications "[tlo preserve and protect the publichealth, welfare, and safety[,]" itdoes 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). 3rfwe answered the fact questions necessary to perform the Hughes test, which we cannot do, and ifwe issued an opinion concluding that section 6.06 is unconstitutional, which we are notdoing, our opinion would not empower the TRCto disobey section 6.06. See Sexton v. Mount OlivetCemetaryAss 'n, 720S.W.2d 129, 137-38(Tex. App.-Austin 1986, writref'dn.r.e.) (explainingthata state agencyhas nopowerother than one expressly grantedby statute orimplied 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 thattheTRC 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 notbinding).Mr. Rolando B. Pablos

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### SUMMARY The United States Supreme Court's test for determining whether a state statute violates the Commerce Clause ofthe United States Constitution involves mixed questions of law and fact. Because this office cannot answer questions of fact, we cannot performthe legal analysis necessary to determine how a courtwould 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 ofTexas

Assistant Attorney General, Opinion Committee