### THE ATTORNEY GENERAL OF TEXAS

October 3, 1989

Hr. Hilary B. Doran,Jr. Chairman TexasRacing commission P. 0. Box 12080 Austin,Texas 78711-2080 OpinionNO. JM-1104
Re: Authority of Texas Racing commission to redefine by rule the term "breeder" (RQ-1795)
DearMr. Doran:
You ask the following question about the Texas Racing Act, article 179e,V.T.C.S.:

Does the Section 6.08 of the Texas Racing Act require the Texas Racing Commission to pay breeders* awards,under the Texas Bred Incentive Program for thoroughbred the owner of the mare at the conception of the accredited horse? horses, to time of Texas-bred

The Racing Act provides for a certainpercentage of the * _. breakage1 to be paid to breeders of Texas-mea nor&es. V.T.C.S. art. 179e, f 6.08(c)(Z). Your question involves the definition of nbreederll for purposes of section 6.08(C)(Z). Section 6.08(d)(Z) defines nbreederG'as Ita personwho is owner of record, 8t the~&imaof conceotiou, of themare that foaled the accreditedTexas-bredhorse." YOU explain that although the preceding definition is the uniformdefinition of 'breederW for quarter horses, it is not the uniform definition of mbreederlW for thoroughbreds. You state that throughout the United States the *'breeder" of a thoroughbred is the owner at the time of foaling. You

1. The "breakage" is "the odd cents by which the amountpayable on each dollar wagered exceeds a multiple of 10 cents, except in the event aminus pool occurs, in which case the breakage shall be in multiples of five cents." V.T.C.S. art. 179e, 9 l-03(20).



### p. 5790Mr. WilliamA. Meincke - Page 2 (JM-1104)

also state that the Racing Commissionurged the legislature to bring Texas law into line with standard practice by amending article 1790 to define "breeder"as the person who is the breeder according to rules of the appropriate state horsebreed registry. The legislature,however, did not enact either of the bills thatwould have done so. w S.B. 448, 71st Leg. (1989);H.B. 1232, 71st Leg. (1989). Your question iswhether the Racing Commission must apply the definition of wbreederw set out in section 6.08(d)(2)when itdistributes the breakage to breeders of thoroughbreds. You suggest that the definition of O'breederOq set out in section 6.08 shouldnot be applied to thoroughbreds because it is inconsistentwith the purposes of the statute, one of which is to encourage the horse-breeding industry. You also state that w[t]o require the payment of breeders' awards to personswho, traditionallyand according to other states breeders* programs, are not considered the 'breeder'of the horse appears tobe an absurd result." Unless a statute is ambiguous,a courtmust follow the clear language of a statute. B Dallas N.A
. m. Inccr 691 S.W.Zd 605, 607 (Tex.1985). In Simmons Y., 220 S.W. 66 (1920),the Supreme Court wrote:

Courtsmust take **statutes as**  **they** find them. More than that, they should.be willing to take them as they find them. They should search out carefully the intendment of a statute,giving full effect to all of its terms. But theymust find its intent in its language, and not elsewhere. They are not the law-making body. They are not responsible for ommissions in legislation. They are responsible for a true and fair interpretation of the written law. LSi. at 70. However problematic the current statutory definition of l'breederVamay be when applied to thoroughbreds, it is not ambiguous. Conception and foaling are clearly distinct events. Consequently, neither this officenor the Racing Commissionhas authority to define "breeder of a thoroughbred I1for purposes of section 6.08 as the owner at the time of foalingrather than the time of conception.

p. 5791Mr. William A. Meincke - Page 3 (JM-1104)

SUMMARY The Racing Commission has no authority to disregard the statutory definition of wbreederm in regard to thoroughbreds for purposes of section 6.08 of the Texas Racing **Act,** article 179e.V.T.C.S.

JIM NATTOX Attorney General of Texas
MARYKELLER FirstAssistant Attorney General
LouMccRKARY ExecutiveAssistantAttorney General
JUDGE ZOLLIE STBAKLBY SpecialAssistant Attorney General RICKGILPIN Chairman,Opinion Committee Preparedby SarahWoelk AssistantAttorney General

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