September 25, 1989

Mr. Hilary B. Doran, Jr. Chairman Texas Racing Commission P. 0. Box 12080 Austin, Texas 78711 Opinion No.JM-1102
Re: Whether the Texas Racing Commission may adopt rules regarding the regulating of simulcasting (RQ-1645)
DearMr. Doran: Article 179e,V.T.C.S., the Texas Racing Act, created the Texas Racing Commission [hereinafter the commission], j& at 92.01, and conferred on it broad rulemaking authority governing horse racing and greyhound racing.l You ask about the scope of that authority, specifically whether the commission may promulgate rules regulating "simulcasting" of race events.

YOU informus that "simulcasting" is the transmission, by electronic means, ofa race track event that isconducted at one racetrack anddisplayed at-another location, in this instance, another licensed racetrack. Under such a system,

1. Section 3.02 of the act confers broad authority regarding regulation and supervision of races involving wagering and provides:

Inaccordance with section 3.01 of this Act, the commission shall regulate and supervise every racemeeting involving wagering on the result ofgreyhound orhorse racing. All persons and thinas relatina to the oneration of those meetincs are subject to reaulation and suvervision. The commission shall adopt rules for conducting racing involving wageringand shall adopt other rules to administer thisAct that are consistent with this Act. (Emphasis added.)
Inaddition, the act explicitly confers rulemaking authority on the commission inover twenty specific instances.

P. 5774Mr. Hilary B. Doran, Jr. -Page 2 (JR-1102)

pari-mutuel wagering is conducted at both locations, with the state's portion of the pari-mutuel pool at each location being taken and remitted to the state, as required by the act. Youdonot ask about any specific rules: rather, YOU ask about the commission's general authority.
You ask:
Does the Texas Racing Act prohibit the Texas Racing Commission from adopting rules regarding the regulation of simulcasting?2
We conclude that article 179e,V.T.C.S., the Texas Racing Act, does not confer any authority on the Texas Racing Commission topromulgate rules regarding the regulation of simulcasting. We so conclude, because we construe the act toprohibit wagering on simulcast events. Administrative agencies have only those powers that expressly are conferred by statute, Cobra Oil &Gas Corv. v. Sadler, 447 S.W.2d 887 (Tex. l-968),together with those necessarily implied frompowers andduties expressly given or imposed. Stauffer v. Citv of SanAntonio, 344 S.W.2d 158 (Tex.1961). The threshold issue iswhether the actpermits wagering at licensed racetracks on simulcast events. If it does, then the commission has general authority to promulgate rules regulating such events. If the act **does** not permit wagering on such-events, the commission has no such authority.
The act isdetailed, expressly conferring comprehensive regulatory authority on the commission. If the legislature had intended that wagering on simulcast be permitted, one reasonably would expect the act to confer such regulatory authority expressly: yet the act does not confer express

2. Youdo not specify inyour request whether you are concerned about the commission's authority regarding purely intrastate simulcasts or interstate simulcasts or situations inwhich an association isthe host ofa simulcast or an exhibitor of a simulcast. We note that section.3001 through 3007 of title 15of theUnited States Code, the Interstate Horseracing Act of 1978 (P.L.95-515), prohibits off-track pari-mutuel wagers being placed oraccepted inone state with respect to the outcome ofahorse race taking place in another state unless consent is obtained from (the host racing association), (thehost racing commission,) and the off-track racing commission.

P. 5775Mr. Hilary B. Doran, Jr. -Page 3 (JM-1102)

authority on the commission to regulate simulcasting. Indeed, nowhere in the act is "simulcasting@' or any synonymous term orphrase evenmentioned. You do not assert that the Texas Racing Act expressly permits wagering on simulcast events, but you do advance two arguments in support of the proposition that the legislature intended topermit suchwagering. impliedly arguments persuasive. We findneither of your
First, you relyupon the language of sections 11.01 and 11.04 of the act. authority on the Section 11.01 confers explicit rulemaking commission regarding pari-mutuel wagering andprovides inpertinent part:

The commission shall adopt rules to regulate wagering on greyhound races and horse races under the system known pari-mutuel wagering.3 waserina conducted onlv v an a ociation wit% its enclosure. (Emihasis azied.) Section 11.04 of the act governs wagering and provides:

(a) Onlv a nerson inside the enclosure where aracemeetina isauthorized mav wacaer on the result of a racevresented bv the association bv contributino monev to the pari-mutuel **~001** overated bv the association. The commission shall adopt rules to prohibit wagering by employees of the commission and to regulate wagering by persons licensed under thisAct.

3. Subsection 1.03(18) of the actprovides:

'Pari-mutuel wagering' means the form of wagering on the outcome ofgreyhound orhorse racing in which those who wager purchase tickets ofvarious denominations on an animal or animals and all wagers for each race are pooled andheld by the racing association for distribution of the total amount, less the deductions authorized by thisAct, toholders of tickets on thewinning animals.

P- 5776Mr. Hilary B. Doran, Jr. -Page 4 (JM-1102)

(b) The commission shall adopt rules prohibiting an association from accepting wagers by telephone. (c) The commission shall adopt rules prohibiting an association from accepting a wager made on credit and shall adopt rules prohibiting automatic banking machines within the enclosure. (Emphasis added.)
But seeV.T.C.S. art. 179e, 5 3.02 (commission shall adopt rules forconducting racing involving wagering).
Your argument focuses on theuse of theword l'presented" in section 11.04(a), contrasting thatwith the use of the word "conductedtqin section 11.01.4 You assert:

Somemembers of the commission believe this section [section 11.01 of the act] also authorizes the commission to adopt rules regulating wagering on simulcast races, including regulations regarding the racetracks fromwhich a simulcast is broadcast, the racetracks atwhich a simulcast will be presented, and the type of equipment that will transmit the simulcast electronic signals. Section 11.04(a) offers additional support for this belief. In that subsection, wagering isrestricted to races that arepresented by an association. Several places intheAct refer to an association that conducts races. [Citations omitted.] Under the 'plain meaning' rule of statutory construction, we must assume that the use of two different terms indicates a difference in meaning is intended. [Citation omitted.] Use of theword 'presented' indicates that the legislature intended a different meaning fromwhat the

4. When thebill reached the floor of the Senate, the sentence of section 11.01 that is underscored above read: "Wagering may be conducted only by an association within its enclosure durino a racemeeting." The underscored phrase was deleted by floor amendment and thephrase "presented by the association" was inserted after the word race in subsection 11.04(a).

p. 5777Mr. Hilary B. Doran, Jr. -Page 5 (JM-1102)

word 'conducted' would have conveyed. This section [subsection 11.04(a)] indicates that the legislature contemplated that races could bepresented by an association for parimutuel wagering without being conducted by that particular association. Obviously, Section 11.04(a) permits only an association that is licensed to conduct racemeetings at some time topresent, forwagering purposes, races that are conducted elsewhere. Although theAct does not explicitly mention simulcasting, the plain language of the statute indicates that simulcasting is authorized by theAct and that the Commission isauthorized to adopt rules to regulate simulcasting. (Emphasis inoriginal.)
It isgenerally presumed that every word ina statute isused for apurpose. Cameron v. Terre11 &Garrett. Inc., 618 S.W.Zd 535 (Tex. 1981). But, inconstruing a statute, wemust look to the intent of the legislature and must construe the statute as awhole soas toqive effect to that intent. pnicht v. International Harvester Credit Corn., 627 S.W.2d 382 (Tex. 1982).

The fundamental rule controlling the construction ofa statute is to ascertain, if possible, the intention of the Legislature as expressed in the language of that statute. [Citation omitted.] ln ascertainins this intent. courts must examine the entire statute or act and notmerelv isolated portion thereof. [Citation omitte?] Further, ifthe intent of the Legislature is ascertained, courtsmust enforce that intent even though the intent isnot altogether consistentwith the strict letter of the statute. [Citation omitted.] (Emphasisadded.)
State v. Terrell, 588 S.W.2d 784, 786 (Tex. 1979).
Theword "present" isdefined by Webster's New World Dictionary of theAmerican Language tomean, inter alia, "to offer forviewing or notice: exhibit; display; show." The **same** dictionary defines "conduct" tomean, inter alia, "to manage, control, or direct." While there isa dictionary distinction between themeanings of the twowords, there is nomeaningful distinction between the twowords when the act isread as a whole. Your argument is not persuasive, because, throughout the act, the words "present," "hold,"

P. 5778**Mr.** Hilary B. Doran, Jr. -Page 6 (JM-1102)

"conduct,l*and %=un" areused interchangeably. See, e.cr 55 9.03 ('IAnassociation shall provide for the runn' q 0; races . . .");9.05 ("Whena horse racing associatiok m both quarter horse and Thoroughbred races . . ."); 9.06 ("If a horse racing association conducts quarter horse and Thoroughbred racing . . ."');10.02 ("If . . .it is impossible for the licensee tow 11.01 ("Wagering may be cond cte aperson inside the enclosureU ordconducz a race . . .");

. . .1: 11.04 ("Only where a race meeting is authorized maywager on the result of a race presented by the association. . . .'I). (Emphasis added.) Section 3.02 of the act requires the commission to "regulate and supervise every racemeetinq involving wagering on the result of greyhound or horse racing." (Emphasis added.)5 Subsection l-03(6) of the act provides:

'Horse racemeeting' means the conductinq ofhorse races on aday orduring aperiod of ,consecutiveornonconsecutive days. (Emphasis added.) Subsection 1.03(50) of the actprovides inpertinent part:

'Greyhound racing days' means days on which a permitted association conducts greyhound racing. (Emphasis added.) Subsection 1.03(2) of the actprovides:

'Association' means a person licensed under this Act to conduct a horse race

5. We note that article 179e-4,V.T.C.S., provides: Any provision in thisAct to the contrary notwithstanding, the Texas Racing Commission shall regulate all aspects of greyhound racing and horse racing in this state, whether or not that racing involves parimutuel wagering.
We understand you to ask about the simulcasting of race events conducted by associations engaged in pari-mutuel wagering. Therefore we donot address the scope or nature of the authority conferred by article 179e-4, V.T.C.S. See Attorney General Opinion JM-971 (1988).

P. 5779Mr. Hilary B.Doran, Jr. -Page 7 (JM-1102)

meeting or a greyhound race meeting with pari-mutuel racing. (Emphasis added.) Section 6.14 of the actprovides that an "association may not conduct greyhound orhorse racing" at anyplace other than theplace designated in its license, except asprovided inthe act. Section 6.15 ofthe actpermits, under certain circumstances, an "association to conduct races" at a temporary location. Thus, even if we assumed arcuendo that there were a meaningful distinction in the act between the words "conduct" and "present," we construe the act to permit associations topresent only those racemeetings involving pari-mutuel wagering that are themselves conducted by that association, i.e. those racemeetings that an association itselfmanages, controls, or directs. Our construction of the act is strengthened by the fact that sections 6.08 and 6.09 of the act fail to address the allocation of shares and breakage and the disposition of pari-mutuel pools in an instance inwhich a simulcast event ispresented. It would be anomalous for the legislature to intend that associations bepermitted to engage inwagering on simulcast events without, at the same time, providing a means whereby the pari-mutuel pools created by suchwagering be allocated.6 Second, you rely on the legislative history of the act to support your construction. Youplace significance on the fact that the senate rejected a floor amendment to the act that expressly would have prohibited wagering on simulcast events. The amendment would have added section 11.10 to the act,which provided as follows:

Sec. 11.10. SIMULCAST PROHIBITION. The Commission shall adopt rules forbidding the simulcasting of any race taking place inthis state to any other track inthis state or any other state. The Commission shall also adont rules vrohibitina vari-mutuel waaerina on

6. Our construction of the act is inaccord with those state authorities that have addressed the same issue, construing language that is substantively identical with that inthe Texas act. See Advanced Deliverv Serv.. Inc. v. Gates, 228CalRptr. 557 (Cal.Ct.App. 1986);Atlantic Citv Racins Ass'n v. Attornev General, 489 A.2d 165 (1985): 66 OP. Cal.Att'y Gen. 225, 66 Op. Cal.Att'y Gen. 94 (1983); op. KY.Attly Gen. No. 82-4 (1982).

P. 5780Mr. Hilary B. Doran, Jr. -Page 8 (JM-1102)

or horse aces which are broadAlthough Texas courts have held that the deletion of a provision inapending bill discloses 

### a legislative intent to reject 

### the proposal, Smith v. Baldwb 611 S.W.2d 611 (Tex.1980); Transvortation Qua. Co.v. **Maicsvn** 580 S.W.2d 334 (Tex. 1979): 5 81 S.W.2d 482 (Tex. 1935), that is nzt" arule that i; uniformly followed inevery case:

The rejection of aproposed amendment to a statute **may** constitute some argument **for** legislative interpretation of the act amended or sought tobe amended. To such extent it 

### canbe considered by the courts in interpreting the act. However, the rejection of an amendment as such 

### doesnot control the construction of the statute. 82 C.J.S. Statutes 5 360.
There aredecisions holding that in construing a statute, rejected amendments, or rejected alternative legislation, should not be considered, or at least should be given littleweight, since the courts canhave no means of knowing the real reasons that influenced the legislature insuch rejection. Inany event, the rejection of an amendment, or the elimination of words from abill before itspassage, isnot conclusive of the bill's inapplicability to the matters included in such amendment or described by suchwords. a 73 Am. Jur.2d Statutes S 172. Citv of Inaleside v.Johnson, 537 S.W.2d 145, 153 (Tex.Civ. APP.-Corpus Christi 1976,nowrit).

7. We note that theunderscored language of the tabled amendment, on its face,would have authorized the commission to regulate, not just the simulcasts of races conducted in other states, but the actual races themselves. It reasonable to assume that the senate tabled the amendment in the belief that such a provision would violate both the Interstate Horseracing Act of 1978 and the interstate commerce

### clauseof theUnited States Constitution.

P. 5781c Mr. Hilary B.Doran, Jr. -Page 9 (JM-1102)

The Texas cases that have addressed whether the deletion of aprovision inapending bill discloses legislative intent are easily distinguishable from the instant fact situation. Those cases involved the deletion, either in conference committee or during the floor debate in one house, ofprovisions thatwere set forth in the original bills, as introduced. Here the amendment offered would have constituted anaddition to the original bill, not adeletion of one of itsoriginal provisions. None of the cases cited above involved the tabling ofa floor amendment inonehouse ofaprovision thatwas not contained inan original bill.
Under your argument, the fact that the senate rejected the floor amendment would authorize not only the commission topromulgate rules regulating simulcasting, but it would also authorize the commission topromulgate rules regulating off-track wagering. Surely the legislature did not intend that such an important public policy matter as the authorization of simulcasting orof off-track wagering be left to the discretion of the commission, especially when no other provision of the act supports such aconstruction. In this instance, it isreasonable to assume that the senate tabled the floor amendment for the reason that itwould be useless for the legislature to forbid something not authorized by the act inthe first place.
We need not determine, however, the significance, if any, of the senate's tabling of the floor amendment to the act that expressly would have prohibited wagering on simulcast events. While the Code Construction Act, which governs the construction of each code enacted by the 60th or any subsequent legislature, appears topermit consideration of legislative history regardless ofwhether a code provision isthought tobe ambiguous,8 that actdoes not control the construction of civil statutes. Where there isno ambiguity and the intent of the legislature isapparent from the

8. Chapter 311 ofthe Government Code, the Code Construction Act, conta.inssection 311.023, which provides in pertinent part:

In construing a statute, whether or not the statute isconsidered ambiauous on its face, a court may consider among other matters the: (3)legislative history. (Emphasis added.)

Pa 5782Mr. Hilary B. Doran, Jr. -Page 10 (JM-1102)

words of the statute, it is not necessary to analyze extrinsic evidence of legislative intent. Minton v. Frank, 545 S.W.2d 442 (Tex. 1976). The Texas Racing Act is not ambiguous on this issue and its intent is clear. event, the rejection of such anamendment isnot In any tantamount to anaffirmative grant ofauthority, permitting either the simulcasting of racemeetings oroff-track wagering.

An agency may not exercise authority that exceeds the clear intent **of** the legislature, Gulf Coast Water Co. v. Cartwrig& 160 S.W.2d 269 (Tex.Civ.App. -Galveston 1942, writ ref'd'w.o.m.), normay itenlarge itspowers by its own orders. Railroad Commn S.W.2d 560 (Tex. Civ: FortWorth &D C.Rv i942, .co., 161

- Austin writ ref'd w.0.m.). Accordingly, we- conclude that article 179e, V.T.C.S., the Texas Racing Act, confers no authority on the Texas Racing Commission to promulgate rules regulating the simulcasting of race events, because the act itself does not permit wagering on such events.
SUMMARY
Because article 179e,V.T.C.S., the Texas Racing Act, **does** not itself authorize an association to engage inpari-mutuel wagering on simulcast events, the Texas Racing Commission iswithout authority topromulgate rules regulating simulcast events. vewjru ,

JIM MATTOX Attorney General of Texas
MARY KELLER First Assistant Attorney General
LOUMCCREARY Executive,Assistant Attorney General
JUDGE ZOLLIE STEAKLEY Special Assistant Attorney General
RICK GILPIN Chairman, Opinion Committee Prepared by JimMoellinger Assistant Attorney General

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