   OFFICE OF THE ATTORNEY GENERAL . STATE OF TEXAS
   JOHN    CORNYN




                                         November 20,2002



The Honorable Carole Keeton Rylander            Opinion No. JC-0581
Comptroller of Public Accounts
Lyndon B. Johnson Building                      Re: Whether “the Great State Challenge” qualifies
P.O. Box 13528                                  as “Breeders’ Cup races” under section 6.094 of the
Austin, Texas 78711-3528                        Texas Racing Act, article 179e, Revised Civil
                                                Statutes (RQ-0567-JC)

Dear Comptroller    Rylander:

        You ask whether “the Great State Challenge” qualifies as “Breeders’ Cup races” under
section 6.094 of the Texas Racing Act, article 179e of the Revised Civil Statutes (the “Act”). We
conclude that it does not.

          Before turning to your question, we briefly review the statute at issue. Section 6.094 of the
Texas Racing Act authorizes a racing association that conducts “Breeders’ Cup races” to apply for
the reimbursement of costs associated with holding the races from amounts that the association
would otherwise pay the state under sections 6.091 and 6.093 of the Act. See TEX. REV. CIV. STAT.
ANN. art. 179e, 0 6.094(b)-(c) (V emon Supp. 2002). Under those provisions, a racing association
must set aside for the state a certain percentage of various types of pari-mutuel pools. See id.
§§ 6.091, .093. The section 6.094 scheme applies only if a Texas racing association has been
officially designated to host the Breeders’ Cup races:

               Beginning on January 1 of the year for which the association has
               been officially designated to host the Breeders ’Cup races, amounts
               that would otherwise be set aside by the association for the state
               during that year under Sections 6.09 1(a)( 1) and 6.093 of this Act shall
               be set aside . . . for deposit into the Breeders’ Cup Developmental
               Account.

Id. 8 6.094(b) (emphasis added). Section 6.094 establishes         the Breeders’ Cup Developmental
Account as an account in the general revenue fund, administered      by the Texas Racing Commission.
See id. The Comptroller is charged with prescribing procedures      regarding the deposit of funds into
the Breeders’ Cup Developmental Account. See id. 8 6.094(b),        (f)(2).

         The Racing Commission “shall make disbursements from the Breeders’ Cup Developmental
Account to reimburse Breeders’ Cup costs actually incurred and paid by the association, after the
association files a request for reimbursement.” Id. 0 6.094(c). Section 6.094 defines “Breeders’ Cup
The Honorable     Carole Keeton Rylander       - Page 2          (JC-0581)




costs” as “all costs for capital improvements and extraordinary expenses reasonably incurred for the
operation of the Breeders’ Cup races, including purses offered on other days in excess of the purses
that the host association is required to pay by this Act.” Id. 8 6.094(a)(l). Disbursements from the
account may not exceed $2 million. See id. $j 6.094(b)-(c).

         In connection with your duties under the Act, you ask whether “the Great State Challenge”
qualifies as “Breeders’ Cup races” under section 6.094.’ In your letter, you explain that the National
Thoroughbred Racing Association (NTRA) has designated the Sam Houston Race Park to host the
inaugural “Great State Challenge” on December 7,2002. See Request Letter, supra note 1. The race
will be funded by the NTRA, Breeders’ Cup Limited, state breeders, and the race park. See id. It will
be modeled on the Breeders’ World Cup Thoroughbred Championships, an event that was formerly
called the Breeders’ Cup. See id. You also inform us that the Breeders’ World Cup Thoroughbred
Championships are now conducted by the NTRA and Breeders’ Cup Limited. See id. This year, the
Breeders’ World Cup Thoroughbred Championships will be held in Illinois. See id.

         We conclude that “the Great State Challenge” does not qualify as “Breeders’ Cup races” under
section 6.094.     Section 6.094 expressly defines “Breeders’ Cup races” to mean “a series of
thoroughbred races known as the Breeders’ Cup Championship races conducted annually by
Breeders’ Cup Limited on a day known as Breeders’ Cup Championship day.” TEX. REV. CIV. STAT.
ANN. art. 179e, 8 6.094(a)(2) (V emon Supp. 2002). On its face, section 6.094 applies only to the
Breeders’ Cup Championship races. Based on the facts asserted in your letter, it appears that this year
the Breeders’ Cup Championship, or at least the successor to that event, will take place in Illinois and
that the “Great State Challenge” is not the Breeders’ Cup Championship races (or a successor thereto)
but rather another event modeled after the Breeders’ Cup races.

         Our conclusion that the legislature intended section 6.094 to apply only to one racing event
is supported by the legislative history. The legislature added section 6.094 to the Act in 2001 in
Senate Bill 1096. A bill analysis states that its purpose is to provide “a funding mechanism for the
track that conducts the Breeders’ Cup races,” which the bill analysis compares to the “Olympic or Pan
American games .” BILLANALYSIS,HOUSE COMM.ONLICENSING                &ADMINISTRATIVE      PROCEDURES,
Tex. S.B. 1096, 77th Leg., R.S. (2001); see also Hearings Before the Senate Bus. & Commerce
Comm., 77th Leg., R.S. (Apr. 3, 2001) (“The Breeders’ Cup is a prestigious, internationally
recognized event that offers possibly $13 million dollars in purses for one day of horse-racing.
Simply put, this day of racing is to the pari-mutuel industry what the Super Bowl is to football, the
Final Four is to college basketball, what the World Series is to baseball.“) (testimony of Senator Cain,
author of S.B. 1096) (tape available from Senate Staff Services Office). The fiscal note for Senate
Bill 1096 is based on the following assumption:

                 The first year that a racing association in Texas could host the
                 Breeders’ Cup is 2004. The venues for Breeders’ Cup races through
                 2003 have already been selected. If a Texas race track were chosen for



        ‘Letter from Honorable Carole Keeton Rylander, Comptroller of Public Accounts, to Honorable John Comyn,
Texas Attorney General (June 2 1,2002) (on file with Opinion Committee) [hereinafter Request Letter].
The Honorable   Carole Keeton Rylander     - Page 3        (JC-0581)




                the Breeders’ cup race in 2004, a Texas race track could not host the
                Breeders’ Cup for approximately another five years because the race
                currently rotates among five race tracks nationally.

FISCALNOTE,Tex. S.B. 1096,77th Leg., R.S. (2001). On the basis of this assumption,    the fiscal note
concludes that Senate Bill 1096 would have no fiscal impact on the state budget until at least 2004:

                It is estimated that up to a $2,000,000 loss to the General Revenue
                Fund would occur in fiscal year 2004, or any fiscal year thereafter in
                which a Texas race track were chosen to host the Breeders’ Cup, due
                to the diversion of pari-mutuel taxes from the General Revenue Fund
                to the new General Revenue-Dedicated     Account.

Id. Clearly, the legislature intended section 6.094 to apply to one particular event, the Breeders’ Cup
Championship races, which could not be held in Texas until at least 2004, and did not intend for
section 6.094 to apply to other similar events.
The Honorable   Carole Keeton Rylander    - Page 4      (JC-0581)




                                         SUMMARY

                       “The Great State Challenge” does not qualify as “Breeders’
                Cup races” under section 6.094 of the Texas Racing Act.




                                            Attorney General of Texas



HOWARD G. BALDWIN, JR.
First Assistant Attorney General

NANCY FULLER
Deputy Attorney General - General Counsel

SUSAN DENMON GUSKY
Chair, Opinion Committee

Mary R. Crouter
Assistant Attorney General, Opinion Committee
