                    THE   ATTORRNEY        GENERAL
                              OF  TEXAS


                                 May 13, 1988




    Honorable Bob Bullock         Opinion No.   JM-903
    Comptroller of Public
       Accounts                   Re: Al+.hority of Racing Commis-
    L.B.J. State Cffice           sion members ?:o delegate duties,
       Building                   and authority of Racing   Cammis-
    Austfn, Texas 78774           sion to contract with       Te>.as
                                  Veterinary  Medical    Diagnostic
                                  Laboratory (RQ-1390)


    Dear Mr. Bullock:

         YOU ask several questions    about the Texas Racing
    Commission,L which regulates greyhound  racing and horse
    racing in Texas.    V.T.C.S. art. 179e.  You first ask a
    series of question.: about the authority    of commission
    members to delegate their duties.

         The Racing Act, V.T.C.S.      art. 175e, s2.02, provides
    that the commission shall consist of eight members:           six
    appointed by the governor with the advize and consent of the
    Senate and two ex officio members,        the chairman   of the
    Public Safety Commission    and    the  Comptroller   of   Public
    Accountr..  YOU  ask   the  following    questions   about    the
    commission members'  authority  to  delegate their  duty to   sit
    on the commission:

            (a) May the Chief Clerk of the Comptroller of
            Public Accounts   sit in the Comptroller's
            absence as a voting member of the Commission?




               --

P
          1. Two of your questions are governed by the Open
    ?.feetingsAct, article 6252-17, V.T.C.S., and one is governed
    by the Texas Open Records Act, article 6252-17a, V.T.C.S.
    Those questions will be answered by separate letter.




                                 p. 4454
Honorable Bob Bullock - Page 2   (JM-903)




        (b) If he does so, should he be counted       in
        determining whether  a quorum is present      at
        Commission meetings?

        (c) May    other Commission    members   send
        substitutes to act for them in Commission
        meetings that they are unable to attend?

        (a) If (~1 is answered    "yes ,It should the
        substitutes for the other members be counted
        in determining  whether there is a quorum
        present at Commission meetings?

        (e) May the Commission allow substitutes     for
        the other members to vote in place of        the
        absent members?

        (f) May the Commission allow substitutes for
        the other members   to sit for the absent
        members and speak but not vote?

     Your first question is whether the comptroller's   chief
clerk may sit as a voting member of the commission.   Section
403.003 of the Government Code provides:

           (a) The comptroller shall appoint a     chief
        clerk who shall:

              (1) perform the duties of the comptrol-
           ler when the comptroller   is unavoidably
           absent or is incapable of discharging
           those duties;

               (2) act as comptroller if the office of
           comptroller    becomes   vacant   until
           comptroller is appointed    and qualified:
           and

              (3) under the comptroller's direction,
           supervise  the keeping    of the   books,
           records, and accounts of the office and
           perform other duties required by law   or
           the comptroller.

           (b) The chief     clerk shall take        the
        official oath and give bond in the amount     of
        $10,000, payable in the same   manner as     the
        comptroller's bond, and conditioned   on     the
        faithful performance  of the duties of       the
        office.



                            p. 4455
         Honorable Bob Bullock - Page 3   (JM-903)



P



         Thus, when the comptroller     is unavoidably absent or is
         incapable of performing the duties of his office, his chief
    -    clerk is authorized to perform those duties.  Your question,
         then, is whether the comptroller's responsibility to sit as
         a member of the Racing Commission constitutes    a "duty of
         office.*'

              In Pfeffer v. Mahnke, 260 S.W. 1031 (Tex. Comm'n App.
         1924, opinion adopted), the court considered whether     the
         comptroller's chief clerk was authorized    to perform   the
         duties attaching to the office of comptroller as a member of
         the state board of education.  The court wrote:

                   It is observed that articles     4318 and
                4343,   respectively,   require   that    the
                secretary of state and the comptroller  shall
                each appoint a chief clerk.       It is not
                optional with either to appoint or        not
                appoint such chief clerk. The statute      is
                mandatory in providing for a chief clerk for
                each. The offices of chief clerk for each is
                thus created by statute.     It is likewise
                observed that the statutes provide that, in
                the absence of the secretary of state, or his
                inability to act from any cause, the chief
                clerk may perform all the duties required by
                law of that officer and that it shall be the
                duty of the chief clerk of the comptroller to
                discharge the duties of the comptroller  when
                he may be unavoidably absent or incapable
                from sickness, or other causes, to discharge.
                said duties.

                    The service of the secretary of state and
                 the comptroller on the board of education   is
                 the performance by each of a duty attached by
                 the statute to the office held by each.    The
                 duties are not personal.     They are duties
                 attached to the offices.    Any holder of the
                 office of secretarv of state or comotroller
                 must serve as a member of the board of
                 education as a Dart of the duties of those
                 offices resoectivelv.     Since the statutes
                 provide   that   the     chief   clerks    may
                 respectively perform the duties attaching   to
    /4           those offices, the chief clerks may, in the
                 contingencies  mentioned   in the    statutes,
                 perform the particular duties attaching     to
                 the offices of     secretary of state      and
                 comptroller by virtue of the statutes making




                                     p. 4456
Honorable Bob Bullock - Page 4   (JM-903)




        them members of the board of education.    Z&l
        such cases the chief clerks do not nerform
        those duties by deleaation of authoritv  from
        their chiefs. Thev oerform them bv virtue of
        authoritv of the Leaislature in the same wav
        that their chiefs are authorized to perform
        them
        --      The Legislature could have provided
        that, in the absence, etc., of the secretary
        of state and comptroller, the chief clerks of
        either or each should be members of the board
        of education.   The Legislature has done the
        same thing in a different way by prescribing
        that the chief clerks provided    by statute
        shall and may,     in  the absence of     the
        secretary   of state and the     comptroller,
        perform the duties of those officers,   among
        which are duties arising from their member-
        ship on the      state board of    education.
         (Emphasis added.)

260 S.W. at 1033-34.     Because the comptroller's   respons-
ibility to sit as a member of the Racing Commission        is
attached to his office rather than to him personally,      it
follows from the court#s decision     in Pfeffer v. Mahnke,
sunra, that the comptroller's   chief clerk is authorized  to
perform the comptroller's    duty to sit as an ex officio
member of the Racing Commission when the comptroller        is
unavoi.dably absent or is otherwise unable to act. It also
follows that when the chief clerk takes the place of the
comptroller as a member of the Racing Commission, he may
vote and should be counted   in determining whether a quorum
is present.

     YOU also ask whether other members   of the commission
may send substitutes  to act for them. It is well estab-
lished that, in the absence of express statutory   authority,
a public official may not delegate non-ministerial    duties.
M&dy v. Texas Water-Commission,   373 S.W.2d 793, 797    (Tex.
Civ. ADD. - Austin    1963, writ ref'd n.r.e.);      Attorney
Generai-Opinion WW-66 (1957). A commission memberts duty to
participate   in deliberations   and decisions    about    the
regulation   of greyhound  and horse racing     in Texas    is
non-ministerial and may not be delegated.      See Attorney
General Opinion H-884 (1976).     Therefore,  none of      the
commissioners, including the comptroller, may deleoate their
authority   to act as members of the commission.           The
comptroller's chief clerk is authorized  to sit as a member
of the commission in the comptroller's absence by virtue    of
statutory authority, not by virtue of a delegation.   Pfeffer
v. Mahnke, 260 S.W. at 1034.




                            p. 4457
     Honorable Bob Bullock - Page 5     (JM-903)




          YOU also ask     whether   the  commission  may   allow
     substitutes for other members to sit for the absent members
     and speak but not vote. In the absence of express statutory
     authority, a commission member may not delegate his respon-
     sibility to deliberate at meetings.  The commission may not
     authorize such delegation by rule.     See aenerallv   H-188
     (1973); see also Webster v. Texas & Pacific Motor TransDOrt
     co., 166 S.W.2d 75 (Tex. 1942).

          Three questions remain:

             Whether the Commission would be authorized to
             loan or otherwise transfer money to Texas A&M
             to get ready for drug testing of racing
             animals.

             If not, may an interagency contract properly
             be entered into between the Commission   and
             A&M to help A&M establish a lab to test
             racing animals for drugs?

             Whether the Commission   is required to use
             Texas A&M for drug testing of animals       if
             cheaper and equally effective drug testing of
             animals is available through other sources.

          Section 14.03 of the Racing Act provides, in part:

                 (a) The commission   shall adopt    rules
             prohibiting the illegal influencing   of the
             outcome of a race, including but not limited
             to the use of medication,     stimulants,  or
             depressants to attempt to or to influence
             illegally the outcome of a race.

                (b) The commission may require prerace
             testing by urinalysis,      saliva testing,     or
             blood testing, by any combination          of the
             three, or by        any other testing       method
             recognized   by    the    racing    industry    to
             determine whether such a drug, chemical,        or
             other substance has been administered          and
             shall require postrace testing by such a
             method. The commission       shall adopt rules
,-           that require all such tests to be conducted
             using state-of-the-art       methods.     On   any
             positive   test     showing the     presence    of
             prohibited    drugs,     chemicals,    or    other
             substances, the animal shall be immediately
             disqualified    and    all persons     who    have



                                    p. 4458
Honorable Bob Bullock - Page 6   (JM-903)




       administered or applied the drug, chemical,
       or other substance or any electric device or
       spur may be immediately     suspended pending
       hearing by the stewards or judges with the
       right of appeal to the commission.     Such a
       suspension may be stayed, in the discretion
       of the commission   only, during the pendency
       of such appeal. The commission shall require
       that all urine samples be frozen and main-
       tained for a period of one year in order to
       enable veterinarians and chemists to conduct
       follow-up tests to      detect and    identify
       prohibited drugs. All other specimens    shall
       be maintained   for testing purposes   in the
       manner prescribed by the commission.   Such a
       test may also be required by the owner or
       trainer of an animal or by the association at
       whose racetrack the animal is entered in a
       race meeting.

V.T.C.S. art. 179e, 514.03(a), (b).   Subsections   (d) and (e)
of section 3.07 of the act provide:

           (d) Medication or drua testins nerformed
       under Section   14.03 of this Act shall be
       conducted  either bv the Texas Veterinary
       Medical   Diaanostic     Laboratorv    or     in
       conjunction with or bv a orivate or DUbliC
       aaencv that is avvroved bv the commission and
       bv the Texas Veterinary     Medical  Diaanostic
       Laboratorv and that is accredited       bv the
       American Association of Veterinarv Laboratory
       Diasnosticians.     Charges     for    services
       performed under this section by the Texas
       Veterinarv Medical   Diaonostic Laboratorv    or
       bv an avvroved and accredited       private   or
       public  aoencv shall be forwarded to the
       commission for avvroval as to reasonableness
       of the charues for the services.    Charges may
       include but are not limited to expenses
       incurred for travel, lodging, testing,       and
       processing of test results. The reasonable
       charses associated with medication     or drug
       testina conducted under this Act shall be
       paid bv the association that receives        the
       services.  On the aonroval of the charses as
       reasonable. the commission shall forward a
       CODY of the charaes   to the association    that
       receives the services for immediate oavment.
       All persons performing testing services under



                            p. 4459
Honorable Bob Bullock - Page 7     (JM-903)




        this section and Section 14.03 of this Act
        must be licensed under Article 7 of this Act.
        A person conducting tests under this section
        is a state veterinarian     for purposes   of
        Subsection (a) of this section.

            (e) To pay the charges associated     with
        the medication or drug testing, an associa-
        tion may use the money retained by the
        association on tickets that are purchased   as
        wagers on winning horses or greyhounds     and
        that are not cashed by the holders of the
        tickets.   If additional amounts are needed to
        pay a-3  charges,  the association shall pay
        those additional    amounts.   If the amount
        retained exceeds the amount needed to pay the
        charges, the association shall pay the excess
        to the comptroller for deposit in the manner
        provided  by Section     3.09 of this     Act.
        (Emphasis added.)

V.T.C.S. art. 179e, §3.07(d),    (e).

     You ask whether the commission is authorized to loan or
transfer money to the Texas Veterinary Medical    Diagnostic
Laboratory2  "to get ready for drug testing       of racing



          2. You phrase your questions        in terms of the
    commission's authority to contract with Texas A & M
    University.  We assume that you intend that reference    to
    mean the Texas Veterinary Medical Diagnostic    Laboratory,
    which is referred to in section 3.07(d).         The Texas
    Veterinary Medical   Diagnostic Laboratory was created by
    article 746533, which provides:

        Sec. 1. There is hereby created an agency of
        the State of Texas to be known as the Texas
        Veterinary Medical Diagnostic Laboratory.   It
        shall not be a part of The Texas A & M
        University System but it shall be under the
        jurisdiction and supervision of the Board of
        Regents of The Texas A & M University System.
        The said Board of Regents shall staff the
        agency with an executive director and such
        other employees   necessary  for the proper
        functioning thereof,    and such     executive
                                         (Footnote Continued)




                            p. 4460
Honorable Bob Bullock - Page 8    (x9-903)




animals." A state agency has only those powers      expressly
granted to it by the legislature     or necessarily  implied.
Railroad Commission v. Atchison.   Toveka & Santa Fe Railwav
co., 609 S.W.2d 641, 643    (Tex. Civ. App. - Austin    1980,
writ ref'd n.r.e.). The Racing Commission has authority    to
order drug testing and to approve the laboratories       that
perform such drug testing. The commission     does not, how-
ever, have authority under the applicable statutes to set up
a laboratory itself or to contract with the Texas Veterinary
Medical Diagnostic Laboratory   or any other entity for the
purpose of setting up a laboratory. Also, a rider to the
current appropriations act provides:

           APPROPRIATION TRANSFERS.  a. None of the
        money appropriated   by   this Act may      be
        transferred from one agency or department   to
        another agency or department, or from one
        appropriations item or program to another
        appropriation item or program, unless     such
        transfer is specifically  authorized by this
        Act.

General Appropriations Act, Acts 1987, 70th Leg., 2d C.S.,
ch. 78, art. V, .561, at 1123. See also Ia. art. III, at
954   (appropriation  to   the Texas     Veterinary    Medical
Diagnostic Laboratory of money to be used "for establishing
a drug testing program       for race horses and       dogs").
Therefore, the commission may not loan or otherwise transfer
money to the Texas Veterinary Medical Diagnostic    Laboratory
to set up a laboratory for drug testing.

     You also ask whether the Racing Commission       and the
Texas Veterinary   Medical   Diagnostic Laboratory  may enter
into an interagency   contract to help the Texas Veterinary
Medical Diagnostic Laboratory    establish a laboratory.   The
Interagency Cooperation    Act, article   4413(32), V.T.C.S.,
does not enlarge the authority of state agencies.     V.T.C.S.
art. 4413(32),   55. Because the Racing Commission has no
authority to establish a laboratory for drug testing, it may



(Footnote Continued)
        director and employees  shall be eligible  to
        participate in the same retirement    systems
        and personnel benefits available to employees
        of The Texas A 8 M University System.

V.T.C.S. art. 7465b, 51.




                            p. 4461
    Honorable Bob Bullock - Page 9    (a-l-903)




    not contract with Texas Veterinary      Medical   Diagnostic
    Laboratory to establish a laboratory for drug testing.
-
         Your last question is whether drug testing must be
    performed  by the    Texas Veterinary   Medical    Diagnostic
    Laboratory if "cheaper and equally effective drug testing of
    animals is available."3   The Racing Act expressly   provides
    that drug testing shall be conducted either by the Texas
    Veterinary Medical Diagnostic Laboratory 810r in conjunction
    with or by a private or public agency that is approved by
    the commission   and    by the   Texas Veterinary     Medical
    Diagnostic Laboratory and that is accredited by the American
    Association of Laboratory Diagnosticians."     V.T.C.S.  art.
    179e, 53.07(d).    Therefore,  the Racing Commission      may
    approve any accredited laboratory to perform drug testing as
    long as the Texas Veterinary Medical Diagnostic    Laboratory
    also approves.   The Texas Veterinary    Medical   Diagnostic
    Laboratory may not unreasonably withhold its approval.    See
    Allstate Insurance co. v. State Board of Insurance,       401
    S.W.2d 131, 132 (Tex. Civ. App. - Austin 1966, writ ref'd
    n.r.e.).

                            SUMMARY

                The comptroller's chief clerk may perform
            the comptroller's duties as ex officio member
            of the Racing Commission if the comptroller
            is unavoidably absent or otherwise unable to
            discharge those duties.   In such a situation
            the chief clerk may vote and should be
            counted in determining whether     a quorum   is
            present. Members of the Racing Commission
            may not delegate their duties as members      of
            the    commission.    The   chief    clerk    is
            authorized   to act    in the     comptroller's
            absence by virtue of statutory authority, not
            by virtue of delegation.




          3. The act does not anticipate that there will be
P   only one approved    laboratory. Nothing  in section  3.07(d)
    would prevent the commission from approving more than one
    laboratory.    Also,    the   commission must   approve   the
    reasonableness   of the     charges made   by any    approved
    laboratory.




                                p. 4462
   Honorable Bob Bullock - Page 10     (JM-903)




               The Racing Commission has no authority  to
            spend money to develop     a laboratory    to
            perform drug testing, and the commission  has
            no authority   to contract with the Texas
            Veterinary Medical  Diagnostic Laboratory  to
            develop a laboratory to perform drug testing.
            The commission   may approve an accredited
            laboratory other than the Texas Veterinary
            Medical Diagnostic Laboratory to perform drug
            testing, but the Texas Veterinary     Medical
            Diagnostic Laboratory must also approve the
            laboratory.

                                       ,;jgy&
                                                 MATTOX
                                         Attorney General of Texas

MARYKELLER
First Assistant Attorney General

LOU MCCREARY
Executive Assistant Attorney General

JUDGE EOLLIE STEAKLEY
Special Assistant Attorney General

RICK GILPIN
Chairman, opinion Committee

Prepared by Sarah Woelk
Assistant Attorney General
