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) 

Dear Mr. Doran: 

Article 179e, V.T.C.S., the Texas Racing Act, created 

the Texas Racing Commission [hereinafter the commission], 

j& at 9 2.01, 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 inform us that "simulcasting" is the transmission, 

by electronic means, of a race track event that is conducted 

at one racetrack and displayed 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: 

In accordance with section 3.01 of this 

Act, the commission shall regulate and supervise every race meeting involving wagering on 

the result of greyhound or horse 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 wagering and shall adopt other rules to administer 

this Act that are consistent with this Act. 

(Emphasis added.) 

In addition, the act explicitly confers rulemaking authority 

on the commission in over twenty specific instances. 

P. 5774 
Mr. 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. You do not 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 to promulgate rules regarding the regulation of 

simulcasting. We so conclude, because we construe the act 

to prohibit 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 from powers and duties expressly given 

or imposed. Stauffer v. Citv of San Antonio, 344 S.W.2d 158 

(Tex. 1961). The threshold issue is whether the act permits 

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 is detailed, 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. You do not specify in your request whether you are 

concerned about the commission's authority regarding purely 

intrastate simulcasts or interstate simulcasts or situations 

in which an association is the host of a simulcast or an 

exhibitor of a simulcast. We note that section.3001 through 

3007 of title 15 of the United States Code, the Interstate 

Horseracing Act of 1978 (P.L. 95-515), prohibits off-track 

pari-mutuel wagers being placed or accepted in one state 

with respect to the outcome of a horse race taking place in 

another state unless consent is obtained from (the host 

racing association), (the host racing commission,) and the 

off-track racing commission. 

P. 5775 
Mr. 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 or phrase even mentioned. 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 to permit such wagering. 

impliedly 

arguments persuasive. 

We find neither of your 

First, you rely upon 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 

and provides in pertinent 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 a race meetina is authorized mav wacaer 

on the result of a race vresented 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 this Act. 

3. Subsection 1.03(18) of the act provides: 

'Pari-mutuel wagering' means the form of 

wagering on the outcome of greyhound or horse 

racing in which those who wager purchase 

tickets of various denominations on an animal 

or animals and all wagers for each race are 

pooled and held by the racing association for 

distribution of the total amount, less the 

deductions authorized by this Act, to holders 

of tickets on the winning animals. 

P- 5776 
Mr. 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 see V.T.C.S. art. 179e, 5 3.02 (commission shall adopt 

rules for conducting racing involving wagering). 

Your argument focuses on the use of the word l'presented" 

in section 11.04(a), contrasting that with the use of the 

word "conductedtq in section 11.01.4 You assert: 

Some members 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 from which a simulcast is broadcast, 

the racetracks at which 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 is restricted to races that are presented 

by an association. Several places in the Act 

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 the word 

'presented' indicates that the legislature 

intended a different meaning from what the 

4. When the bill 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 race meeting." The underscored phrase 

was deleted by floor amendment and the phrase "presented by 

the association" was inserted after the word race in subsection 11.04(a). 

p. 5777 
Mr. 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 

be presented 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 race meetings at 

some time to present, for wagering purposes, 

races that are conducted elsewhere. 

Although the Act does not explicitly mention 

simulcasting, the plain language of the 

statute indicates that simulcasting is 

authorized by the Act and that the Commission 

is authorized to adopt rules to regulate 

simulcasting. (Emphasis in original.) 

It is generally presumed that every word in a statute 

is used for a purpose. Cameron v. Terre11 & Garrett. Inc., 

618 S.W.Zd 535 (Tex. 1981). But, in construing a statute, 

we must look to the intent of the legislature and must 

construe the statute as a whole so as to qive effect to that 

intent. pnicht v. International Harvester Credit Corn., 627 

S.W.2d 382 (Tex. 1982). 

The fundamental rule controlling the construction of a 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 not merelv isolated 

portion thereof. [Citation omitte?] Further, 

if the intent of the Legislature is ascertained, courts must enforce that intent even 

though the intent is not altogether consistent with the strict letter of the statute. 

[Citation omitted.] (Emphasis added.) 

State v. Terrell, 588 S.W.2d 784, 786 (Tex. 1979). 

The word "present" is defined by Webster's New World 

Dictionary of the American Language to mean, inter alia, "to 

offer for viewing or notice: exhibit; display; show." The 

same dictionary defines "conduct" to mean, inter alia, "to 

manage, control, or direct." While there is a dictionary 

distinction between the meanings of the two words, there is 

no meaningful distinction between the two words when the act 

is read 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" are used interchangeably. See, e.cr 

55 9.03 ('IAn association shall provide for the runn' q 0; 

races . . ."); 9.05 ("When a 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 to w 

11.01 ("Wagering may be cond cte 

a person inside the enclosureU 

ordconducz a race . . ."); 

. . . 1: 11.04 ("Only 

where a race meeting is 

authorized may wager 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 race meetinq involving 

wagering on the result of greyhound or horse racing." 

(Emphasis added.)5 Subsection l-03(6) of the act provides: 

'Horse race meeting' means the conductinq 

of horse races on a day or during a period of 

,consecutive or nonconsecutive days. (Emphasis 

added.) 

Subsection 1.03(50) of the act provides in pertinent part: 

'Greyhound racing days' means days on 

which a permitted association conducts 

greyhound racing. (Emphasis added.) 

Subsection 1.03(2) of the act provides: 

'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 this Act 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 do not 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. 5779 
Mr. 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 act provides that an "association may 

not conduct greyhound or horse racing" at any place other 

than the place designated in its license, except as provided 

in the act. Section 6.15 of the act permits, 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 to present only those race meetings involving 

pari-mutuel wagering that are themselves conducted by that 

association, i.e. those race meetings that an association 

itself manages, 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 in which a simulcast event is presented. It would 

be anomalous for the legislature to intend that associations 

be permitted to engage in wagering on simulcast events 

without, at the same time, providing a means whereby the 

pari-mutuel pools created by such wagering be allocated.6 

Second, you rely on the legislative history of the act 

to support your construction. You place 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 in this 

state to any other track in this state or any 

other state. The Commission shall also adont 

rules vrohibitina vari-mutuel waaerina on 

6. Our construction of the act is in accord with those 

state authorities that have addressed the same issue, construing language that is substantively identical with that 

in the Texas act. See Advanced Deliverv Serv.. Inc. v. 

Gates, 228 Cal Rptr. 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. 5780 
Mr. Hilary B. Doran, Jr. - Page 8 (JM-1102) 

or horse aces which are broadAlthough Texas courts have held that the deletion of a 

provision in a pending 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" a rule that i; 

uniformly followed in every case: 

The rejection of a proposed amendment to a 

statute may constitute some argument for 

legislative interpretation of the act amended 

or sought to be amended. To such extent it 

can be considered by the courts in interpreting the act. However, the rejection of 

an amendment as such does not control the 

construction of the statute. 82 C.J.S. 

Statutes 5 360. 

There are decisions holding that in construing a statute, rejected amendments, or 

rejected alternative legislation, should not 

be considered, or at least should be given 

little weight, since the courts can have no 

means of knowing the real reasons that influenced the legislature in such rejection. 

In any event, the rejection of an amendment, 

or the elimination of words from a bill 

before its passage, is not conclusive of the 

bill's inapplicability to the matters 

included in such amendment or described 

by such words. 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, no writ). 

7. We note that the underscored 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 clause of the United States Constitution. 

P. 5781 
c 

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

The Texas cases that have addressed whether the deletion of a provision in a pending 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, of provisions that were set forth in the original 

bills, as introduced. Here the amendment offered would have 

constituted an addition to the original bill, not a deletion 

of one of its original provisions. None of the cases cited 

above involved the tabling of a floor amendment in one house 

of a provision that was not contained in an original bill. 

Under your argument, the fact that the senate rejected 

the floor amendment would authorize not only the commission 

to promulgate rules regulating simulcasting, but it would 

also authorize the commission to promulgate rules regulating 

off-track wagering. Surely the legislature did not intend 

that such an important public policy matter as the 

authorization of simulcasting or of off-track wagering be 

left to the discretion of the commission, especially when no 

other provision of the act supports such a construction. In 

this instance, it is reasonable to assume that the senate 

tabled the floor amendment for the reason that it would be 

useless for the legislature to forbid something not 

authorized by the act in the 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 to permit consideration 

of legislative history regardless of whether a code provision is thought to be ambiguous,8 that act does not control 

the construction of civil statutes. Where there is no ambiguity and the intent of the legislature is apparent from the 

8. Chapter 311 of the Government Code, the Code Construction Act, conta.ins section 311.023, which provides in 

pertinent part: 

In construing a statute, whether or not 

the statute is considered ambiauous on its 

face, a court may consider among other 

matters the: 

(3) legislative history. (Emphasis added.) 

Pa 5782 
Mr. 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 an amendment is not 

In any 

tantamount 

to an affirmative grant of authority, permitting either the 

simulcasting of race meetings or off-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.), nor may it enlarge its powers by its own 

orders. Railroad Comm n 

S.W.2d 560 (Tex. Civ: 

Fort Worth & 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 in pari-mutuel wagering 

on simulcast events, the Texas Racing Commission is without authority to promulgate rules 

regulating simulcast events. 

, vewjru 

JIM MATTOX 

Attorney General of Texas 

MARY KELLER 

First Assistant Attorney General 

LOU MCCREARY 

Executive,Assistant Attorney General 

JUDGE ZOLLIE STEAKLEY 

Special Assistant Attorney General 

RICK GILPIN 

Chairman, Opinion Committee 

Prepared by Jim Moellinger 

Assistant Attorney General 

P- 5783